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Some Recollections of 



a Long Life 



Edgar Jay Sherman 



Boston 

Privately Printed 

1908 



t)55 



Printed by 

Newcomb £f Gauss 

Salem, Mass. 



vutbor 

(P«r<M)n) 



Copyrighted 1908 









PREFACE. 



Thinking it might be interesting to my children, my 
grandchildren, or my great grandchildren, in some future 
generation to learn something concerning their ancestors 
"who have passed over to the great majority", and at the 
earnest request of my children, I am prompted to write 
and publish for private use, the following pages. I do 
this with some misgivings, however, as I recall the saying, 
"Oh, *** that mine adversary had written a book !" and I 
also know that any one writing of himself is liable to ex- 
hibit a good deal of egotism. 

I subscribe myself their humble ancestor, 

Edgab J. Shekmai^. 



LIST OF ILLUSTRATIONS. 



Portrait, Frontispiece 

Birthplace, Weather sfield, Vermont, . . . . p. 9' 
Capt. Sherman^ August, '63, after a severe illness, p. 39' 
Col. E. J. Sherman, Asst. Adj. Gen. Mass. Militia, p. 72 
Gen. Benjamin F, Butlee^ and staff, 1867, . . p. 73 ' 
Summer Home at Bass Kocks; 1877-1903, . . p. 169 
Summer Home at Bass Rocks; 1877-1903, . . p. 185 
Judge Sherman's Present Summer Home, . p. 217 
Mrs. Edgar J. Sherman, the Judge's first wife, p. 241 
AscuNEY Mountain, p. 265 



TABLE OF CONTENTS. 



Chapter I. Ancestry and Youth. 

Birth and forefathers. School days. Working on 
the farm. Teaching at Springfield, Vermont; at 
Cape Cod. Experience with Sidney Ellis. A prayer 
in school. 



Chapter II. My Start in Life. 

Assaulted by mistake. Disappointment as regards 
entering college. Admitted to the Essex Bar. My 
first case. Partnership with Honorable Daniel 
Saunders, of Lawrence. My mother's death; her 
character. Marriage. As Clerk of the Police Court. 
Fall of the Pemberton Mills. O. S. Fowler examines 
my head. 



Chapter III. In the Civil War. 

1 enlist as private, elected Captain in the 48th 
Massachusetts V. M. Departure. A burial at sea. 
Letter to a bereaved mother. Arrival in Louisiana. 
I leave hospital for Port Hudson. Assault of June 
14th, 1863. Repulse and retreat. Brevetted major. 
Home by the Mississippi. Later service at Wash- 
ington and Fort Delaware. 



TABLE OF CONTENTS. 



Ohaptee IV. Representative and District Attorney. 

Elected as Representative. I help B. F. Butler 
to a Major-Generalcy. Cases at the bar. Partner- 
ship with John K. Tarbox. Ann Bobbins vs. Joseph 
Potter. Successful practice. Elected District At- 
torney for Essex. Case of Leonard Choate, the "fire- 
bug", of Wightman. Experience with Stephen B. 
Ives, Jr. A culprit tangled up in cross-examination. 



Chaptee V. Register in BanTcruptcy, Assistant Adju- 
tant General and Attorney General. 

An attempt to steal frustrated. Experience with 
Judge Otis P. Lord. Death of my oldest brother. 
Made Assistant Adjutant General. Concord muster 
of 18Y0. My election as Attorney General. Sudden 
illness and complete recovery. 



Chapter VI. Attorney Generalship, — continued. 

Case of Dr. Franklin Pierce. Lord Coleridge ap- 
proves my opinion. His lordship sho\vn T Wharf. 
Friendliness of B. F. Butler. Argument in the case 
of James Nicholson. 



Chaptee VII. Attorney Generalship, — continued. 

I oppose B. F. Butler in the case of Henry K. 
Goodwin. 



Chaptee VIII. Attorney Generalship, -^continued. 

Case of Alfred T. Adams, of Marion A. Montgom- 
ery, of Samuel F. Besse, of James E. IsTowlin, of 
Sarah J, Robinson, of Charles H. Freeman, of the 
Housatonic R. R. Co. 



TABLE OF CONTENTS. 



Chapter IX. As Judge of the Superior Court. 

My intimacy with Governor Oliver Ames. I de- 
cline a seat on the Supreme Bench, but accept a 
justiceship of the Superior Court. Death of Govern- 
or Ames. A bright criminal. Sentence of John C. 
Sanborn, a high official of the 'New York, New 
Haven, and Hartford R. R. Co. Case of McCarthy. 
A boy witness. Experience with Thomas Riley. 
Tribute to Charles P. Thompson. Extract from the 
Boston Globe. 



Chaptee X. Continued Judicial Service. 

Case of Daniel W. Getchell, of Torrey E. Ward- 
ner for contempt of court. Unpleasant experiences. 
Case of Jefferson. Petition for my removal. Misuse 
of the right of petition. 



Chapter XI. Continued Judicial Service. 

Capital Trials. Case of Trefethen, of Languer, 
Correspondence with Attorney General A. E. Pills- 
bury. Case of Patrick Sullivan, etc. 



Chapter XII. Continued Judicial Service. 

Case of Franciszek Umilian, of John C. Best, of 
Lorenzo W. Barnes, of Alfred C. Williams, of 
Charles L. Tucker. 



TABLE OF CONTENTS. 



Chapter XIII. Excursions and Meetings with Famous 
Men. 

President of the Boston Vermont Association. 
Excursion to Vermont in 1901. Entertained at 
Montpelier, Burlington, Lake Champlain, etc. Ill- 
ness and death of Mrs. Sherman. The Lawrence 
semi-centennial. Visit to Texas, to South Carolina. 
I meet Abraham Lincoln, TJ. S. Grant, Franklin 
Pierce, James Buchanan, W. T. Sherman, P. H. 
Sheridan, D. G. Farragut, the Prince of Wales, now 
Edward VII., Longfellow, Whittier, Holmes, Lem- 
uel Shaw, Charles Sumner, Henry Wilson, Frederick 
Douglass, George S. Boutwell, Rockwood Hoar, 
Wendell Phillips, S. G. Howe, :N". P. Banks, Theo- 
dore Roosevelt, James G. Blaine, Ben Wade. My 
intimacy with Robert G. Ingersoll. Second Mar- 
riage. A few stories from the Judges' Lobby. 



Chapter XIV. The Jubilee Banquet, March 17, 1908. 

First suggested by Messrs. Hurlburt and Jones. 
The Boston Herald thereon. Ofl&cers of the Essex 
Bar Association and guests. Speeches and letters of 
William H. :tsriles, William H. Moody, Herbert Par- 
ker, Marcus P. Knowlton, William L. Putnam, John 
A. Aiken, John D. Long, Dana Malone, John P. 
Sweeney, Daniel Saunders, Harvey N^. Shepard, 
Samuel J. Elder, George Fred Williams, Sherman 
L. Whipple, Charles U. Bell and Edgar J. Sherman. 



APPENDIX. 

List of Children and Grandchildren, 



CHAPTER I. 



ANCESTKY AND YOUTH. 



Genealogical. 

I was born in Weathersfield, Windsor County, Ver- 
mont, November 28, 1834, being the fourth child of 
David and Fanny (Kendall) Sherman, on the same farm 
owned by my father, grandfather and great grandfather. 

I have always had a desire to know something of my 
ancestors; who they were, and where they came from to 
this country; but until about 1870, when I read an article 
written by the Rev. David Sherman in the New England 
Genealogical Register of January of that year, I knew 
nothing about them further back than my grandfather. 

The first of the family of whom I have knowledge was 
Henry Sherman of Dedham, Essex County, England, 
who died in 1589. Tracing the family since, it runs; 
Henry (1), Henry (2), Edward (3), and Rev. John (4), 
who came to this country in 1633. He remained a short 
time at Watertown, Massachusetts, from whence he 
moved, in 1640, to Wethersfield, Connecticut, where he 
became a magistrate. Captain Daniel (5), Samuel (6), 
Samuel (7), David (8), David (9), and Edgar (10), 
myself. 

The Samuel Sherman (7) last above named was my 
great grandfather. He was born April 8, 1740, and died 
June 22, 1811, at Weathersfield, Vermont. He moved 



10 ' SOME KECOLLECTIONS 



from Wethersfield, Connecticut, to Weathersfield, Ver- 
mont, between 1760 and 1780, perhaps giving the new 
settlement the name of the to^vn from which he came, al- 
though it is spelled differently. 

At or before his death, the farm of several hundred 
acres was divided between his four sons, Samuel, David, 
Gould and Alpheus. 

The above named David was my grandfather. He was 
born January 24, 1772 and died December 22, 1844. I 
remember him very well. He was a Calvinist Baptist, 
very strict and devout. My father purchased the farm of 
grandfather and took care of him and grandmother as 
long as they lived. 

"The Sherman Family", which is numerically strong, 
has included Roger Sherman, General William T. Sher- 
man and John Sherman, among its noted members. 

Little can be said of my early life different from that 
of most country boys, except that I was more mischievous 
and troublesome than the average boy. 

My playmates were generally considered "the bad 
boys" of the neighborhood, and, I am inclined to believe, 
that it was not the best recommendation a boy could have 
to be an associate of mine. Still I do not recall any very 
bad things we ever did. 

I remember, to my sorrow, and great disadvantage to 
this day, that I was so full of mischief, I neglected my 
studies in school and spent my time in provoking fun and 
sport for the scholars. When called to account by the 
teacher I would look like injured innocence that I should 
be even suspected! Often I succeeded, after a long argu- 
ment, to the delight of the children, convincing the 
teacher of my innocence. 

I remember one winter, after the teacher's patience 
had been tried by the scholars coming in late at the noon 



OF A LONG LIFE. H 



recess, he declared he would punish any and every scholar 
who should thereafter be late. 

The next noon another boy and I suggested to the girls 
and boys that we all go sliding and skating ; that we would 
watch for the teacher's return and notify them in season 
so that they would not be punished for being late. 

The afternoon session began at one o'clock. At that 
time there were only a few scholars in attendance. 

About half -past one, we (the other boy and I) mounted 
a high wall back of the school house, and there screamed 
at the top of our voices, "School has begun. Come quick, 
run! hurry, hurry," and then ran into the school house, 
taking our seats, looking anxious and innocent. Soon, 
in came the other scholars, one after another, all out of 
breath, and coughing, and keeping the school in an up- 
roar for some time. 

After a while the teacher, ferule in hand, came in front 
of my desk and told me to hold out my hand. Such a 
look of surprise came over my face as almost to deter him. 
Then an argument began between teacher and pupil on 
the merits of punishment, after the scholars had taken 
such pains to prevent disobeying the rule, — placing two 
boys to watch for the teacher's coming to school at the end 
of the noon recess, and as to how it could have happened 
that the said two boys did not observe the teacher, etc., 
etc. At last the teacher relented and laid aside his ferule. 
Imagine the discipline of the school after that date! If 
the teacher had taken the "said two boys" well in hand 
at that time it would have been for the benefit of the 
school and to the great advantage of the said boys. 



12 some eecoli.ections 

Experience on the Faem. 

Almost every year my father used to make a trip to 
Boston. This was before the day of railroads in Vermont. 

He would kill the poultry, butcher his hogs, and load 
his team with farm produce and drive to Boston. There 
he would make the exchange for flour, sugar, coifee, etc., 
articles that were needed on the farm, and drive home, 
the trip lasting nearly a week. 

My father used also to team flour across the State from 
Whitehall to Weathersfield. I remember going with him 
in 1843, when I was a small boy, and driving one of the 
four-horse teams along behind my father's team. 

I remember the date particularly, because it was dur- 
ing the Miller excitement. Miller had prophesied that 
the "world was to burn up", and the date was fixed. 
Father pointed out to me the house where Miller lived. 
I remember asking father, if it was true. He replied, no, 
that most of the people did not believe in Miller, although 
he had a great many followers, who did believe in him, 
and did believe that the world was to come to an end by 
burning. 

When the day arrived, sometime in October (I think) 
1843, a new date had to be stated. "The Millerites", as 
they were called, were greatly disappointed. 

Experiences as a Pedagogue. 

In the winter of 1848-9, being quite large for a boy of 
my age and feeling ashamed of my ignorance, I began to 
study and improve my time. 

In the autumn of 1851, encouraged by my good mother, 
I attended for three months the Wesleyan Seminary at 
Springfield, Vermont, going to the district school in the 



OF A LONG LIFE. 13 



winter, returning to the Seminary for the spring term, 
and laboring on the farm during the summer. Thus I 
continued for several years. 

Encouraged by F. O. Blair, the principal of the Semi- 
nary, I engaged to teach school (in fact he engaged the 
school for me) in the winter of 1852-3 in the town of 
Springfield, at a district called "Hard Scrabble". 

I was examined, granted a certificate and commenced 
teaching. I taught a twelve weeks term in six weeks! 

A son and daughter of a wealthy and influential family 
in the district had attended school at the Seminary with 
me, and, as I learned afterwards, were opposed to my 
teaching their school. They attended school, conducted 
themselves with propriety, but kept up a "lively talk" 
outside. An honest farmer, who was the inefficient com- 
mittee man, waited upon me and asked "How be ye 
gettin' on?" I replied that I thought "well". "You're 
not gettin' on at all well", said the committee man. "How 
do you know? You have never honored us with your 
company!" said I "Oh, I have heard the talk", said he. 

He paid me what was due and I was obliged to leave. 

I was terribly mortified. I had undertaken to teach 
school and had failed! 

I went home and explained the matter to my father and 
mother. My father was evidently discouraged, and said 
"Well, now I guess you'd better go to work and remain on 
the farm" ! 

My mother, with more faith and better judgment, 
said "I understand it all; it was not your fault. You 
can teach. Go back to the Seminary, and next winter 
try it again. I know that you will succeed". 

I would that everybody could know the different effect 
the language of my father and mother had upon me. My 
whole future course was at stake. I was almost dis- 



14 SOME RECOLLECTIONS 

couraged. It was a critical time in my life. I went back 
to the Seminary and continued my studies. I do not 
blame my father. He lacked the courage and confidence 
of my mother. 

My room mate at the Seminary was George O. Atkin- 
son, since a clergyman in the West. He told me that there 
were good opportunities for teachers on Cape Cod, Mass- 
achusetts. 

In the spring of 1853 my father sold his farm in 
Weathersfield and moved to Lawrence, Massachusetts. 

I was determined to teach again. 

The last of l^ovember of that year I went to Lawrence, 
visited my family, and then started for Harwich, Barn- 
stable County, Cape Cod, Massachusetts. 

I was not acquainted with a person there; I had heard 
the name of only one man, — Sidney Brooks, the principal 
of a small seminary there. 

I went to Boston (where I had never been before), then 
to Sandwich by cars; there I took the stage, and after a 
long ride arrived at Harwich late at night. 

The next morning I called upon Mr. Brooks, but did 
not, as I could not, present any recommendations as a 
teacher. 

He received me kindly, but informed me that all the 
good schools in town had been engaged, leaving only three, 
one a small school which was usually taught by a woman, 
and two others which were so bad that they were troubled 
to find teachers to undertake to teach in them. 

My friend and schoolmate, since a merchant in Kan- 
sas, Lyman Field, and my brother, Henry L. Sherman, 
requested me to engage schools for them. Here were 
schools enough for all of us, but a dubious sight for me, 
in view of my past experience. 

Armed with a line from Mr. Brooks, who was chair- 



OF A LONG LIFE. 



man of the town examining board, I started for the 
prudential committee men of the three districts. 

I engaged the small school for Mr. Field, and then 
went to Bassettsville, so-called, and found a Captain Bas- 
sett, an old sea captain, who was the committee man. I 
remember him as having a very red face, with a half 
hand of tobacco inside his cheek, the juice running from 
the corners of his mouth. I made known my business. 
'"^Why", said he, "you can have the school, but the boys 
will carry you out the first day ; there are a dozen of 'em 
larger and older than you are, and we have one scholar 
who is over twenty years old and weighs over two hun- 
dred. The boys seem to make a business of carrying out 
teachers as fast as we can hire 'em ; but if you are a fight- 
er and can stay in the schoolhouse, I'll hire you. If you 
don't kill more than two or three of them I'll back you 
and find no fault". 

I found the other school at Deerfield, so called, a large 
one and a hard one, but not so bad as the one at Bassetts- 
ville. 

Here were opportunities for teachers, sure enough, but 
I had failed once. What should I do. Here I was; to 
return would be a failure. ^ 



Teaching at Cape Cod. 

I engaged all the schools and sent for Mr. Field and my 
brother. They came, and we were examined and given 
certificates as qualified to teach. 

Then it must be decided which school I should take. I 
was only nineteen years old and weighed about one hun- 
dred and thirty pounds. 

My brother insisted that I should take the "fighting 



16 SOME EECOLLECTIONS 

school", as we called the one at Bassettsville, saying that 
I had had more experience in wrestling and boxing than 
he. This was true. At the seminary, these were among 
the sports of the scholars, and I enjoyed atheltic sports 
of all kinds. I could pass a better examination in these 
sports than in my studies. It was finally decided that I 
should go to Bassettsville. 

At the beginning the school was small. Soon the larger 
boys came, and finally Sidney Ellis, weighing over two 
hundred. My heart sank within me. He was the leader 
in all mischief. He was ignorant, scarcely able to read or 
write his own name, but he was the hero and idol of the 
unruly. 

These boys were not bad boys. They only wanted to 
keep up their reputation of carrying out the teacher. I 
tried to make friends with them, but while they acted 
kindly out of school, they were not behaving well in 
school. Sidney was their leader. 

I talked with Mr. Bassett. He said if Sidney did not 
behave to send him out of school. At the close of school, 
one day, after I had spoken to him several times on ac- 
count of misbehavior, I told him what the committee man 
had authorized me to do, and said "You cannot come to 
school any more without his or my consent". He replied, 
"I'll see about that". 

It was soon noised about that the boys were to carry 
the teacher out of doors the next morning. 

That evening the parents of many of the scholars came 
to see me. They praised the teacher ; told how well their 
children had succeeded in their studies; expressed great 
sympathy for the teacher, and condemned the conduct of 
the bad boys. Their call seemed a little like a funeral. 
They felt sure I was to be carried out and they came to 
take leave of me. 



OF A LONG LIFE. 17 



The committee man, Captain Bassett, came to see me. 
He had learned that I was to be carried out of school the 
next morning ; but he came to assure me that it would not 
be done. I asked him why he felt so sure. "Because I 
shall be there", replied the Captain. 

I remonstrated with him. "Of course they would not 
act while you were there, and you cannot be there all the 
time. They will say I am a coward. 'No, no, Captain, 
I must manage this affair alone. If they carry me out, I 
must leave the school". 

My brother and Mr. Field had heard of the news in 
the adjoining districts and came over later in the evening, 
looking serious and anxious, making suggestions and of- 
fering their sympathy. After all my friends had left me, 
I retired. What a lovely night the teacher had ! If I left 
that school it would be failure number two ! I resolved on 
a desperate struggle; that there should be no boys' play. 
It seemed clear to me that in a difficulty of this kind the 
boys must not be allowed to get hold of me; that I must 
press the fight at the first signal and finish it before it had 
fairly begun. 

I was at the schoolhouse early; saw that the fire in 
the stove was all right, and that the old iron shovel was 
handy for all proper uses. 

One thing was noticeable; generally the larger boys 
were not at school when it begun its session, but were 
straggling in all the forenoon. This morning they were 
all "present and accounted for", with Sidney among them. 

Promptly at nine o'clock the school was called to order, 
they all had the benefit of the morning exercises, the read- 
ing of scriptures, excepting Ellis. 

After this I walked, as calmly and coolly as the circum- 
stances would permit, to the front of the desk where Ellis 
was sitting and said, "Sidney, I told you last night not 



18 SOME EECOLLECTIONS 

to come to school again without permission". "Yes", he 
replied, '^I believe you did", at the same moment winking 
to his confederates and starting to rise. I sprang forward 
and dealt him a blow in the side of the head with my fist, 
with all the force and power I possessed. He fell partial- 
ly forward and down. I seized him, with one hand hold 
of the long hair on the back of his head and neck, and 
with the other hand had hold of his chin whiskers, and, 
with great difficulty, dragged him across the floor to the 
door, where he tried to get hold of my legs and the door. 
I then let go my hold, and kicked him in the side of the 
head. The blood flew, but it ended the struggle. He was 
easily tumbled out and the door locked. 

'Not one of his friends moved from his seat; they 
looked frightened, and many of the children were crying. 

As soon as I could compose myself, I made a few re- 
marks, quieting the little ones, and assuring the larger 
ones that hereafter order was to be preserved in the school. 

That forenoon I punished three of the large boys for 
abusing a half-witted boy at recess. 

A few days thereafter I received my first letter from 
a lawyer: 

"Beewstee, January 21, 1854. 
Me. E. J. Sheemaist, 

Sir: — Mr. ISTathan Ellis has left with me for collection 
or prosecution, a demand against you for assaulting and 
putting out of school his son. 

Your immediate attention to the same will prevent 
further costs. 

Yours, etc., 

Geoege Copeland". 



OF A LONG LIFE. 19 



My reply was: 

"Haewich, January 21, 1854. 

Geoege Copeland^ Esq., 

Sir: Yours of today I have. In reply, will say, should 
Mr. Kathan Ellis wish you to proceed with the prosecution 
you speak of, you can do so, as I shall be very happy to 
stand trial. 

Yours in haste, 

E. J. Sheeman^'. 



My reputation as a teacher became much "puffed up" 
on account of this affair. Captain Bassett also became 
somewhat inflated. "At last he had found a teacher who 
could stay in the Bassettsville schoolhouse; could knock 
down and drag out Sid Ellis", etc., etc. 

My reputation was not only established with the pa- 
rents, but the heretofore unruly boys became my friends. 
They liked a teacher who could wrestle, box, and fight, if 
necessary; and what was best with them, could handle 
their ideal hero, Sidney Ellis. All these boys turned over 
a new leaf; began to study and to learn. 

Ellis was sick for a while. A doctor was called to take 
a few stitches in his head. As he begun to improve, his 
comrades called on him and were full of their praises of 
the teacher. Ellis said he thought more of the teacher 
than he should if he had allowed "us boys to carry him 
out of the school ; he certainly was no coward, but a very 
good fighter". 

After Ellis was well enough to be out, he met me one 
day in the highway. I spoke to him pleasantly and he re- 
plied in the same spirit. I was glad that he was not seri- 
ously injured ; that I had been anxious about him, and 



20 SOME KECOLLECTIONS 

although I felt justified in doing what I did, yet I should 
have felt very badly had I inflicted upon him serious and 
permanent injury. He replied that I did just right ; that 
he had no one to blame but himself. 

As we were about to separate, he asked, "Can I come 
to school again" ? I said, "Do you want to" ? "Certain- 
ly I do", was his quick reply. "You can come by making 
an apology", said I. "I cannot do that; I should make a 
botch of it if I tried", said he. "You can come back", 
said I "if you allow me to state before the scholars that 
you come back with my permission, and that you are 
truly sorry for the trouble you have made". 

The next Monday he came, and the statement was made. 

He made good progress in his studies and we became 
quite good friends. 

'No teacher was ever treated with more consideration 
than I was the remainder of the winter by Ellis and his 
companions. 

I had a very successful school, and at its close we had 
quite a creditable "exhibition", for a country school. 

I was offered extra pay to come back the next winter. 

I taught the next winter in another part of the same 
town, receiving higher wages, and had pupils more ad- 
vanced in their studies. 

Ellis afterwards became a sea captain and a respected 
citizen. He was lost at sea in a great storm off the 
Massachusetts coast in the winter of 1874-5, his body being 
washed ashore. 

The subsequent year I taught at the Chatham Seminary 
in the adjoining town of Chatham, with my cousin, Mary 
E. Sherman, as an assistant. 

The winter that brother Henry and I taught school in 
Harwich, he played a good joke upon me. He was rather 
a serious minded man, not much given to joking. He was 



OF A LONG LIFE. 21 



required to offer prayer each morning at the opening of 
his school. I said to him, that I was coming to his school 
some Saturday when mine did not keep, to hear him pray. 
"All right, you will hear a good prayer", said he. Soon 
after, I went. He gave me a seat in the desk. After the 
scholars had read in the Testament, he turned, and in a 
loud voice, asked me to offer prayer, which I felt com- 
pelled to do, rather than decline. 



CHAPTER 11. 



MY STAET IN LIFE. 



Know N'othingism^ — A Victim of Its Enemies. 

During the Know iN'othing excitement, I was living in 
Lawrence, and although not old enough to vote, and having 
nothing to do with the organization, I fell a victim of its 
enemies. 

One dark evening, while coming from my brother's to 
my father's house, I was set upon by three Irishmen, 
knocked down with a club and badly kicked and beaten. 

When I recovered from the effects of the blow upon my 
head, I found myself lying on the gi-ound bleeding. I 
sprang to my feet and commenced to defend myself as best 
I could, and called for help. 

I knocked one of the men down, then ran to my brother's 
house, a short distance away. He came back to the spot, 
but the men had disappeared. I was quite badly injured. 

Very soon an exaggerated account of the affair appeared 
in the newspapers. It was a big story in print. 

I have no doubt the assault was intended for another 
member of the family, a brother, who was a member of 
the "American party", as it was called. 

The mayor and aldermen, hearing of the incident, sub- 
sequently appointed me a police officer, which was con- 
sidered by some of my young friends as a great honor. 



OF A LONG LIFE. 23 



Dartmouth College, 

I was born within thirty miles of Dartmouth College, 
and it was the dearest wish of my young life to enter and 
graduate at that institution. I was given some little en- 
couragement by my parents, provided it did not cost too 
much. 

I went to Hanover, was examined sufficiently to deter- 
mine my qualifications to enter, selected a room, and 
ascertained the probable expense. I returned home in high 
spirits, but upon stating the cost, the amount of ready 
money required, my father said at once that he could not 
afford the expense; that it would not be fair and just to 
the other children, and that I could not go. Imagine my 
disappointment! My mother and I cried over it. I de- 
termined that later I would go ; that I would keep up my 
studies, work summers, teach school winters, until I saved 
money enough to pay my own expenses. And I never gave 
up the idea until I was admitted to the bar. I was then in 
debt about one thousand dollars and it seemed a great load 
to carry. 

In 1884, when I was Attorney General, the trustees of 
Dartmouth, learning of the above circumstances, con- 
ferred upon me the honorary degree of Master of Arts. 

I should have preferred to have earned the degree 
within the College, but it was some satisfaction to know 
that others believed I had earned it outside. 



Admission to the Bae. 

In the month of March, 1855, I entered the law office of 
Oeorge W. Benson, Esq., on Essex Street, Lawrence, and 
remained there, except when away teaching, until I was 
admitted to the Essex Bar, in March, 1858. 



24 SOME EECOLLECTIONS 

The Weekly American of August 9, 1856, contained 
the following: 

"An ancient adage is to the import that while young 
men are, on account of their superior strength, agility 
and courage, to be preferred in an engagement of war, 
old men, in view of the experience, observation and wis- 
dom, are to be chosen as counsel in all matters of moment 
or importance. 

But although this may be safe as a general rule, there 
are instances when young men, possessing the tact, knowl- 
edge and ability, can render important services as counsel 
where an opportunity presents itself for them to show the 
gift that is within them. 

On Tuesday of last week, learning that a young man 
by the name of Patrick Clarke, charged with stealing a 
gold watch, valued at $100, from Mr. Samuel F. Barker 
of Andover, was to be tried in our Municipal Court and 
that our young friend, Edgar J. Sherman, student of 
George W. Benson, Esquire, was to act as counsel for the 
prisoner, — it being also his first attempt in the manage- 
ment of a case in Court, — I had the curiosity to be present 
at the trial. And I do not hesitate to say that in the 
opening of the case for the defence, in the examination 
of witnesses, in discussing the admissibility of testimony, 
and in the summing up of the evidence in the argument, 
Mr. Sherman reflected credit upon himself and his pre- 
ceptor; showing not only that he has been a diligent and 
thorough student of law, but also has superior ability and 
aptness for the business and duties of the profession which 
he has so wisely chosen. 

It is always gratifying to witness the development of 
genius and talent in young men who are to come forward 
in the activities of life, and especially in such as, in ad- 
dition to natural and acquired abilities, possess those 
moral qualities, which alone can embellish and beautify 
the human character". 

In the same paper, under date of March 20, 1858, the 
following appeared. 



OF A LONG LIFE. 25 



"Admitted to the Bar. 

At the opening of the Court of Common Pleas in this 
city, on Wednesday morning, March 17th, on the motion 
of Honorable Thomas Wright, Edgar J. Sherman, was 
admitted to practice in all the courts of the Common- 
wealth. 

Mr. Sherman is a young man of much ability; has 
acquired a good knowledge of the law, and bids fair to 
win, what we hope may be his, — a goodly degree of suc- 
cess in his profession". 

At a subsequent day of the same term of court, among 
the reports of cases, in the same paper, the following ap- 
peared : 

"Court of Common Pleas. 

Before Chief Justice Mellen. 

William D. Lamb vs. Thomas Coupe. 

Plaintiff sues to recover for services rendered defend- 
ant's wife ; defendant claims that his wife left his bed and 
board contrary to his wishes, while he was providing her 
with a physician, and that the plaintiff was employed 
without his order or consent. 

Verdict for the defendant. 

P. S. Chase, for plaintiff. 

E. J. Sherman, for defendant." 

This was my first case tried before a jury. 



Death of my Motpiee. 

Upon being admitted to the Bar, I formed a copartner- 
ship with the Hon. Daniel Saunders, under the firm and 
style of "Saunders and Sherman". 

I was then in debt about $1,000. I had borrowed money 
of friends to obtain an education and to qualify myself for 
my profession. 



26 SOME EECOLLECTIONS 

I have a note, now in my possession, dated July 2, 
1855, signed by me and endorsed by my mother. I prize 
that note very much, and after paying it, have kept it. 

At first I was disposed to blame my father because he 
did not furnish the money to help me through college. But 
as I look back upon the matter now, I feel that he did 
right. 

My mother died October 30, 1858, of consumption. I 
was very fond of her. I think there was more than the 
ordinary affection between mother and son. 

I went with her that summer to visit the old home- 
stead in Weathersfield, Vermont, and her friends. She 
was quite feeble and suffered a great deal. It was her last 
visit. 

After returning to Lawrence she failed very fast. She 
was at the home of my sister, Mrs. Malvina E. Backus. 
She had the constant care of my father, my sister and my- 
self. We did all we could for her, but were compelled to 
see her suffer, waste away and die of that fatal disease. 

I felt her loss severely. 

"I felt myself alone. 
Alone on earth, with none 

to love like thee ; 
A love so pure, so deathless, 

and so free". 

Whatever success in life I have attained, I feel I owe 
much to my good mother. 

As a boy, whenever I was disposed to be in mischief 
and go wrong, it was her kindness and tears that did more 
to make me do right, than all the corporeal punishment I 
received from others. 



OF A LONG LIFE. 27 



Makeiage. 

On the twenty-fourth day of November, 1858, I was 
married to Abbie Louise Simmons, second daughter of 
Stephen P. Simmons. 

My wife was quite young, eighteen the following 
Christmas, but she took me to her father's house and they 
gave us board and lodging. 



Appointment as Cleek of the Police Couet. 

On December the 14th of the same year, I was ap- 
pointed by the Mayor (General Henry K. Oliver) and 
Aldermen, Clerk of the Police Court for a period of three 
years. 

The statute, chapter 270 of the Acts of 1855, provided 
that "the clerk shall examine the witnesses in criminal 
prosecutions, and conduct the cause on the part of the 
government ; and he shall receive in full compensation for 
all his services under this Act, an annual salary of not less 
than $800, and be paid quarterly out of the city treasury". 
The act also provided that the clerk, as justice of the 
peace, shall receive and hear all complaints, and issue all 
warrants and processes in all criminal matters which come 
before said court and shall make the same returnable 
thereto". 

The office was an important one. On February 14, 
1861, I resigned the position and my brother Henry was 
appointed for the unexpired term. I resigned that I 
might devote all my time to my profession. 



28 some kecollections 

My Paktnek, Hon. Daniel, Saundeks, Elected Mayor ; 
Fall of Pembeeton Mills. 

At the City election, early in December, 1859, my part- 
ner, Hon. Daniel Saunders, was elected mayor. On the 
first Monday of January following (1860), he was in- 
augurated. 

On the tenth day of the same month, just before five 
o'clock in the afternoon, while Mr. Saunders and I were 
in our law office on Essex street, we heard a loud noise, 
like snow sliding from the roof of a building. In a few 
moments afterwards, Thomas Wright rushed into the 
office, and said, "The Pemberton Mills have fallen to the 
ground!" 

We hastened to the mills, a quarter of a mile away, and 
there witnessed a heart-rending scene. 

A brick mill, five stories high, eighty-four feet wide, and 
two hundred and eighty feet long, containing nine hun- 
dred persons, nearly six hundred of whom were women 
and children, while the mill was in full operation, without 
notice or warning, had fallen to the ground. The cries 
of the wounded and dying were terrible. They came from 
all sides ; from the unfortunate victims, coming out, with 
limbs broken, from others confined and crushed by fallen 
timbers and machinery, from mothers looking for their 
children, and children calling for their mothers, the wife 
for her husband and the husband for his wife. 

Brave and resolute men went immediately to work to 
relieve those confined in the ruins. 

Later, a lantern was broken and a fire broke out, and 
many perished by the flames. Eighty-three people were 
killed ; one hundred and nineteen severely injured ; one 
hundred and fifty-nine slightly injured and five hundred 
and fifty-seven escaped uninjured. 



OF A LONG LIFE. 29 



Hon. Charles S. Storrow, treasurer of the committee of 
relief of the sufferers of the calamity, in his report, says : 

"Other features there were in the drama which struck 
no less forcibly those who were brought, as we were, into 
close contact with the sad events, and must not be for- 
gotten. Deeds of heroism on that awful night; charity 
melting most selfish; sympathy aroused in the coldest 
hearts; strength nerving the feeblest arm; patient endur- 
ance on the part of the wounded ; quiet resignation in the 
hearts of the mourners; all these were as extraordinary 
as the occasion which called them forth. 'Save o^ash 
first', was the cry of Lizzie Flint, a bright young girl of 
sixteen, an only daughter, who had brought from her 
home in the interior of Maine the character that belongs 
to the rural homes of l^ew England. Poor ]^ash, who lay 
severely injured, was indeed saved. The poor girl did not 
survive ; but who shall say she was not saved also ? 'Give 
this to father; I shan't see him, but you will', said little 
Mary Ann Brennan, an Irish child of ten years, to the girl 
near her, as she gave the pay roll certificate which she 
had received that day. The girl escaped, and the partly 
burnt paper was given to the father. Mary Ann was never 
seen again". 

The spirit of charity was felt at once. Money came im- 
mediately from all parts of New England and from other 
States. It came so fast and in such large amounts, that 
on January 23rd, the Mayor and Committee issued a 
circular letter saying that they had received all that would 
be needed, — more than $66,000. 

A coroner's jury examined into the cause of the calam- 
ity, which was reported to be the use of too weak pillars. 



30 SOME RECOLLECTIONS 



Head Examined by Peofessor O. S. Fowlee. 

In April, 1860, Professor Fowler, of "New York, was in 
Lawrence delivering lectures on Phrenology and making 
phrenological examinations. I knew but little concerning 
the subject, but was anxious to learn. 

John JVIilliken (since deceased), at that time a student 
at law, was a young man of ability, an excellent scholar, 
and a bright man, but not prepossessing in appearance, 
in fact he looked almost idiotic. I agreed with Milliken, 
if he would go with men to Fowler's room, without speak- 
ing a word himself, and be examined, I would pay the 
expense. We went together. I told Professor Fowler, my 
subject was not to speak, and he did not; but Fowler told 
Milliken's characteristics perfectly. 

I felt so much confidence in that examination that I sat 
down and had my own head examined. Professor 
Fowler's report was as follows : 

^^Phrenological Character of Edgar J. Sherman, given by 
Professor 0. S. Fowler, April 26, 1860. 

(Taken by a stenographer and afterwards written out.) 

"You are just as certain to rise in the world as to live, 
and quite certain to live unless you really abuse the health 
laws, for your natural life pluck hold is certainly strong. 
Your mental temperament predominates; should live by 
mind, not muscle; should get a liberal education; should 
be a public speaker; can make a good writer; excel in 
composition and are far best adapted to the study of law. 
Your forte is argument ; you excel in putting this and that 
together and drawing inferences; yours is a logical, ana- 
lytical mind, always have been a thinker, a reasoner; are 
a natural investigator of both facts and law. You illus- 
trate, compare, well ; argue well by ridicule ; have a first- 
rate memory of facts, and it is improving; have a 



OF A LONG LIFE. 31 



wretchedly poor memory of names and dates, but a good 
one for faces, facts and places, and know hundreds by 
sight and all about them, but their names. Are good in 
giving counsel. Are endowed with excellent taste. Have 
a glowing imagination . . . feel the utmost con- 
fidence in your o^vn powers, as if you were a commander ; 
are most indomitably persevering; will carry your point; 
. . . . are signally wanting in belief and a real 
Doubting Thomas; are doing your own thinking and all 
of it for yourself; the minister does none of it for you. 
Have that versatility of talent to attend to a variety of 
things in short order. Are fond of approbation; do best 
when approved most. Are good in making money and 
tolerably good in keeping it, at least becoming better. Are 
extremely cautious and run no risks, but make everything 
perfectly safe. Are a good linguist, but cannot talk 
against time ; must talk ideas or say nothing. Adapted to 
success in life, and especially at the bar; if not a lawyer, 
turn today and begin the study of that profession and are 
calculated to rise and stand high in that profession". 



CHAPTER in. 



IE THE CIVIL WAR. 



Enlistment and Departuke. 

In 1861 the War of the Rebellion came upon us. The 
march of the old Sixth Regiment from Lawrence 
through Baltimore to the Capitol at Washington is read 
and known by all. 

Needham Encampment, Post 39, Grand Army of the 
Republic, situate in Lawrence, was named in honor of 
Sumner H. ^eedham, one of the victims of that march. 

By a rule of the Post each member was required to give 
a reminiscence of the war. In June, 1871, I read a paper 
as follows: 

Mr. Commander, Comrades, Ladies and Gentlemen: 
All good soldiers, conscripts, raw recruits and veterans 
are supposed to obey orders ; on account of that I stand 
here tonight. 

I find myself greatly embarrassed in talking about the 
war, as what I say must necessarily be of a personal char- 
acter, and by attempting to tell what I have seen and 
heard with my limited service, especially in the presence 
of many veterans of the war, will seem common-place in- 
deed. 

When I was first appointed to speak on this occasion, 
I concluded from what I had heard from some others 



OF A LONG LIFE. 33 



who had preceded me in this hall, that it would do to 
stretch the truth a little in order to make a good story and 
interest the audience. 

This feeling was but momentary, as I recalled the story 
of the hatchet and cherry tree in connection with the 
boy, George Washington, and I at once resolved not to tell 
a lie. Therefore whatever I say can be placed on the shelf 
with the hatchet and the cherry tree. 

I desire to state, to begin with, that I do not claim that 
my company, regiment, brigade, division or corps, was the 
best in the service, or that I marched through Baltimore 
with the Old Sixth, or that I enlisted at the beginning of 
the war and served to its close, or that I was wounded at 
Gettysburg or in the Wilderness. These are honors which 
I am not entitled to. 

But I do claim to have done something towards saving 
my country; to have been one in that great army of pa- 
triots, who helped to stay, beat back, and conquer, the 
greatest rebellion the world ever saw. 

To be enrolled as one of the humblest in such an army, 
in such a cause is honor enough for any man. 

At the first drum beat I determined to enlist, but I 
had a better-half, and some little halves, and when I made 
known my purpose at home, I experienced "trying to be 
a soldier under difiiculties". 

Of course I cannot go into particulars. It will be 
sufficient for me to say that I had always been in favor of 
women's rights and women's suffrage. I was summarily 
voted dov^Ti. I consoled myself with two passages of 
scripture, which an old lady said she admired, "Husbands 
obey your wives" and "grin and bear it". 

Like a good husband I remained at home and tried to 
attend to the duties of my profession, but it was of no use. 



34 SOME RECOLLECTIONS 

I read the newspapers, the war news. I could read or do 
nothing else. 

In the summer of 1862 I went west on business, and 
upon returning found that two companies had been en- 
listed from Lawrence and that many of my friends had 
already gone, not to the war exactly, but into camp at 
Wenham in this county. 

I went directly to camp and enlisted as a private 
soldier and then came home. It was then too late to discuss 
the question. Later on I was elected Captain of the com- 
pany. 

We remained in camp a while, then went to Kew York 
and took passage on board the old sailing ship "Constella- 
tion", for nobody knew where, except the captain, but as 
it afterwards appeared, for ]^ew Orleans. 

The day we left camp, a Mrs. Stickney, wife of one of 
the sergeants of my company, came to say good-by to her 
husband, and as she was manifesting feeling and experi- 
encing what many a wife, mother, sister and sweetheart 
felt and experienced on such occasions, I tried to comfort 
her. "Why", said I, "Mrs. Stickney do not fell so badly, 
I expect to bring back your husband safe and sound" ! 
"Yes", said she, bursting into tears again, "I should be- 
lieve that, if you were going on any other business except 
to kill and be killed". 

I came to Lawrence that day and bade my wife and 
friends good-by, and, I must confess, as I walked across 
our Common for the depot, I felt that I was leaving home 
under different circumstances from any I had experienced 
before, and the words of Mrs. Stickney were constantly 
ringing in my ears. 



OP A LONG I>IFE. 35 



A BuEiAL AT Sea. 

The first few days on shipboard, we had a rough time 
of it. After we had been at sea a week or more, a member 
of my company was suddenly taken ill. 

The surgeon was immediately called and everything 
done for him which possibly could be with good care and 
attention, but it was all of no avail. He died within 
twenty-four hours of ship fever. iN'ow came a solemn 
time for us all. Others were taken ill in the same way. 

Here lay our comrade, his eyes closed in death and we 
must bury him with proper ceremony beneath the waves 
of the ocean. There must be one of those most solemn of 
all services, — a burial at sea. 

Our chaplain had not joined us and we had no clergy- 
man on board. An Episcopal prayer-book was found in 
the cabin and suitable selections were made. The hour 
selected for the services was at sunset. 

Our comrade, who had been dressed in his military 
uniform, with blanket wrapped about him, with some 
heavy pieces of coal fastened to his feet in order to cause 
the body to sink, was brought on deck and placed upon a 
plank at the side of the rail. 

The ship had stopped in its outward course, all was 
still, as we his comrades assembled on deck to pay our last 
tribute of respect to the dead. 

Perhaps what was read or said on that occasion does 
not become the acting chaplain to speak of. This much I 
shall be justified in saying, that it was a sad and sacred 
hour. As the services were concluded, as the sun in all 
its brightness was sinking, as it seemed into the ocean, 
the body of our comrade slid from the plank feet foremost 
down over the side of the ship with a loud splash into the 
ocean, and disappeared forever. 



36 SOME RECOLLECTIONS 

But the saddest part was not vet over, the youthful 
soldier was the only child of a widowed mother, who had 
reluctantly consented to his enlistment, only upon the 
promise that I would take good care of her boy. She 
must be informed of his death; what could I say to com- 
fort her in this hour of her terrible affliction. 



Letter to a Bereaved Mother. 

I wrote her as follows: 

On Board the Ship Constellation, 
In Gulf of Mexico. 

January 24, 1863. 
My Dear Madam: 

I have sad news to communicate. Your son is no more 
on this earth. He was taken sick last Wednesday, and in 
less than twenty-four hours he was a corpse. He died at 
4 o'clock, P. M. on Thursday and was buried at sunset in 
the Gulf Stream, off coast of Florida, in latitude 25, long- 
itude 20 west. 

Let me assure you that everything possible was done 
for him, by his comrades and our good surgeon, Dr. Hurd, 
to save him from the ravages of ship fever, but all our 
efforts were in vain. The light of his youthful counte- 
nance has gone out forever. 

What can I say to you, his good mother, who gave her 
only son an offering upon the altar of our common 
country ? 

A fond mother will desire the sad details, his last acts 
and words. An hour before he died, I told him the doctor 
feared that he could not live. He seemed to be fully aware 
of his condition, and turninj? his head toward me he said, 
tell mother I should rather have died fighting the battles 
of my country, but God's will be done. I die happy. Very 



OF A LONG LIFE. 37 



soon he drew his blanket over him, and calmly sank into 
the arms of death, like one drawing the drapery of his 
couch about him and lying down to pleasant dreams. His 
last thoughts were of his mother, and he died lamenting 
only his inability to do more for his country. He was a 
mere boy in age and looks, but he had the judgment of 
an older patriot. 

There are many creeds, which will tell you, that your 
son has not gone to happiness or heaven. He lived an 
honest life, but died, according to those creeds uncon- 
verted. 

"The upright, honest-hearted man, 
Who strives to do the best he can, 

Need never fear the church's ban 
Or Hell's damnation ; 

For God will need no special plan 
For his salvation". 

He died full of faith and hope, with a belief that he 
had performed his whole duty to his country and his God, 
and I believe in the language of the Mayor of one goodly 
city: 

"He was a soldier in a good cause, and at the command 
of the Supreme Governor he had laid dowm his arms and 
gone up higher. Watchworn and weary, he has lain his 
armor oif and rests in Heaven. The everlasting gates of 
Fame have lifted up their heads and he has passed 
through to imperishable renown: The portals of History 
have been thrown wide open and he has marched in a 
hero". 

Think then of your darling boy, not dead, but as hav- 
ing gone over to the majority in Heaven. 

Permit me, my dear madam, to mingle my tears in 
sympathy with yours in this hour of your great aiSiction. 

May God bless and comfort you. 

I am sincerely and affectionately yours, 

Edgar J. SheemaN;, Captain, 



38 SOME RECOLLECTIONS 

After returning home, I was met by the clergyman who 
officiated at the funeral of the young soldier, who said, 
"Captain, I read your letter at the funeral and I do not 
think there was a dry eye in the audience." "But", said 
I, "did you not regard the poetry as heretical" ? "You are 
fully justified", said the clergyman, "in writing anything 
you could to comfort that poor heart-broken mother. But 
who knows that he died unconverted ? Were not his last 
words, 'God's will be done' " ? 



Aerival iisr Louisiana. 

On our way to 'New Orleans we passed Forts Jackson 
and St. Phillip situated on either side of the Mississippi 
river, seventy miles below the city, which had been re- 
cently silenced and captured, with the whole confederate 
JJ^avy Iron Clads, Rams, etc., by that brave old Admiral, 
David G. Farragut. The forts are low, dirty looking 
things, down in the mud. They do not stand boldly out 
like our northern forts. 

At last we reached the famous city that Farragut had 
captured and General Butler had subdued and conquered 
into obedience. 

Whatever may be thought and said of General Butler, 
he was certainly the man to control that turbulent city. 

I found that all loyal men in New Orleans liked him 
and all disloyal men hated him. Admiral Farragut and 
General Butler acted harmoniously together. 

Our regiment was stationed for a while at Baton 
Houge, the capital of Louisiana. 

I was taken sick of malarial fever and sent to the hos- 
pital. During that time our troop moved on Port Hudson. 

If there is anything which lies close to a soldier's heart 




CAPTAIN SHERMAN 
/^fter a severe illness at New Orleans, August, '63 



OF A LONG LIFE. 39 



it is the reputation of his own regiment for good conduct 
in the hour of battle. If that is affected injuriously his 
pride is touched. 

Very soon news came of a fight near Port Hudson, of 
our temporary success, but with it sad news concerning 
my regiment. 

The regiment had been surprised and fired into by a 
rebel brigade which lay in ambush, and the report was 
that my regiment had not behaved well. 

My feeling can be better imagined than described. I 
determined to leave the hospital at once and join the reg- 
iment, but the surgeon forbade it, saying that I was crazy, 
and I am inclined now to think I was partially. 

The fever had left me, but I was extremely thin and 
•weak, having lost about thirty pounds in weight.* 

But I could remain no longer with such news ! The next 
morning I left the hospital without the knowledge and 
without obtaining leave of the surgeon and took the early 
steamboat for Springfield Landing, five miles below Port 
Hudson. 

If ever a man had trouble in reaching his regiment I 
did. I was like the Dutchman's pies, really a good deal 
better than I looked. One of the surgeons at the landing 
ordered me back to the hospital, saying that a "Walking 
Ohost" would be of no use there. I pleaded that I was 
not going on duty, but only to visit the surgeon of my 
regiment. 

The Battle of June 14th, 1863. 

Upon reaching Port Hudson, I found that my regiment 
had fully redeemed itself. In an assault upon the Fort 

■•See photograph on opposite page. 



40 SOME EECOLLECTIONS 

they had volunteered to lead the forlorn hope, in which 
the Lieutenant-Colonel and many officers and men had 
been killed and many wounded. 

On Saturday, June 13, I became satisfied that on the 
next day there was to be another assault on the enemy's 
works, I had not yet been on duty. I had had work 
pleading with our surgeon and my superior officers to 
allow me to join in this assault. Dr. Hurd said to me, 
if you go you will probably be most of the time to-night 
marching to your position, and then if you go through the 
assault tomorrow, if you are not killed, your fever will 
return, and I fear you will leave your bones in Louisiana, 
In fact, I never obtained consent to go into that assault^ 
I went without it. We did march a good part of the 
night, getting from our positions in front of the works, 
down on the left below the fort near the river, where at 
three o'clock in the morning we tried to get a little rest and 
sleep. I never could have reached that point had it not 
been for the help I received from the men of my com- 
pany, some of the time having one on each side helping 
me along in the darkness. Soon after four o'clock, 
Sunday, June 14, we were ordered into position, prepar- 
atory to a charge. We were in close column of division, 
two companies together, and my division had the colors. 
While we waited the skirmishers advanced, and soon 
after the first Brigade went forward upon the double 
quick. From our position we could look onto the field and 
see how hot a place it was. 

Oh, that awful suspense ! No coffee, no breakfast,, 
after a night's march, a tough time for an invalid from 
the hospital. Still the men stand in position and wait. 
I felt so badly I could not stand. I lay down with vaj 
head a little raised, so I could see what was going on. 
After a little I felt faint and so bad that I tried to get 



OF A LONG LIFE. 41 



up, but I could not do it. Then I began to think what an 
awful thing for me it would be to have the troop charge 
without me, and that I would have shown more sense by 
remaining in the hospital. 

It was a beautiful Sabbath morning; the sun was just 
shining forth upon the field over which we were to charge, 
as a staff officer rode forward to Colonel Benedict, who 
was in command of our Brigade, and said, "The General 
desires you to move your brigade forward". I came to my 
feet, took my position, feeling perfectly well. 

"Now we move forward, what a magnificent sight, the 
bayonets glisten in the sun-light, the roar of our own 
cannon and those of the enemy, with the bursting shells, 
fill the air with loud thunder and lightning. 

Almost at the start our adjutant is severely wounded, 
almost by my side ; on we go up the hill. Captain Todd 
in command of the division in front of mine now falls 
and we go over his body. The enemy are now using 
grape and canister, a cross fire, and our men are falling as 
we go, still on we go close to the ditch in front of the 
enemy's earthworks, but we cannot scale the ditch as the 
men are not there with the fascines with which to fill the 
ditch. Oh, what a disappointment! We have failed to 
enter the works. 

"We are ordered to fall back and protect ourselves be- 
hind logs, stumps, and bushes. We do so but many are 
wounded in the attempt. 

The sharp-shooters keep guessing where we are and fire 
as they guess, and they guess pretty well. The hot June 
sun is pouring its rays down upon us. 

By and by we receive orders to get off the field as best 
we can individually or collectively. After awhile many 
members of my company with my lieutenants and myself 
worked our way towards a ravine on the left of the field, 



42 SOME EECOLLECTIONS 

near some logs and bushes. There we discovered an open 
space of ten to twenty rods between us and the ravine. 
We also discovered the enemy with their guns across their 
breastworks ready to send their compliments should we 
attempt to cross that space. 

It was fearfully hot, and I began to feel faint from my 
■over-exertion. Soon the enemy commenced firing through 
the bushes where we were concealed from their view. 

I said to the boys, "I shall die, if I stay here, and I 
am going to try for the ravine". I asked my first lieu- 
tenant to arrange a sergeant and ten soldiers, five feet 
from each other in my rear, and as I started to run have 
them follow in that order. I remarked that shooting a 
l)ird on the wing or a rabbit on the run took a good 
marksman. 

As the lieutenant gave the order I ran and the others 
followed. It would be useless to say we ran well and fast. 
We surprised the enemy. They evidently thought we 
would not undertake such a hazardous proceeding. 

A great many shots were fired, but only one soldier 
was seriously wounded ; he was shot in the hip, but we all 
reached the ravine. The soldiers who came with me into 
the ravine, crept up to the edge, where they could have a 
good shot at the heads over the breastworks, and as others 
^f our soldiers ran across the open space, our men fired 
at those heads. In this way a great many of our men 
made their way into the ravine. 

After the surrender of the fort it was ascertained that 
■our soldiers had proved excellent marksmen on this 
occasion. 

But that Sabbath was a sad day for me. On account 
of my imprudence in leaving the hospital too early the 
fever returned, and I came near leaving my bones in 
Louisiana, and I have had an annual recurrence of the 



OF A LONG LIFE. 43 



disease until 1866, when I was brought so near death's 
door, that I almost saw the other side, and I fear I may 
not be free from all traces of it yet. 

^Notwithstanding all this, I am pleased to believe that 
I did my full duty by word and example and thereby en- 
couraged others in a like direction. A large and some- 
what fleshy soldier in my company, who was ill and unfit 
for duty on that day, and who afterwards had a serious 
illness, was asked by the surgeon why he did not get ex- 
cused. He replied, "I did think of it, but when I looked 
at the captain, a mere skeleton, and then at myself, I 
concluded that if he was able to go into the fight, I cer- 
tainly was, and said nothing". 

I suppose I ought to have been court-martialed for 
disobedience of orders in leaving the hospital, yet at that 
time we needed men so much, that instead of that my 
superior officers all joined in recommending me, on ac- 
count of my services on that day for promotion, and the 
President of the United States, by and with the consent 
of the Senate, conferred upon me the appointment of 
Brevet Major, for what they were pleased to call "Gallant 
and meritorious services". 

While I am pleased that they should think me worthy 
of such honorable mention in the records of the War De- 
partment of the nation, yet, I am sad, when I think that 
there are hundreds of soldiers, a thousand times more 
worthy, whose names only appear on the muster rolls, and 
their deeds are only remembered by Him, "who notices 
even the sparrow fall". 

Port Hudson surrendered July 8, 1863, a short time 
after the surrender of Vicksburg, leaving the Mississippi 
river open to the Gulf of Mexico, and our regiment was 
sent home, its term of enlistment having expired during 
the siege of Port Hudson. We came up the river by 



44 SOME EECOLLECTIONS 



Vicksburg, and upon reaching Massachusetts were "mus- 
tered out of service". 



Anotheb Account. 

In 1907, a history of the 48th Regiment, M. V. M.^ 
was published. The Lawrence Telegram contained the 
following : 

"Albert Plummer, first sergeant of Company B, has 
written and published a creditable history of the Forty- 
Eighth Regiment, M. V. M., in the Civil War. 

Captain Edgar J. Sherman (now Judge Sherman), was 
captain of Company F, and Charles H. Littlefield was 
first sergeant. The following named enlisted from this 
city: Austin E. Smith, Charles E. Kent, Thomas Barry^ 
Thomas Birch, Jonathan Blythe, Edward Boland, Charles 
S. Brown, Patrick Burke, Daniel Caffrey, James Edge- 
comb, Robert Farrow, Ephraim Goodwin, Albert E. Holt, 
John Looby, Michael Mahoney, Patrick Noonan, Edward 
T. Oakes, Joseph K. Parshley, Charles J. Renno, Edward 
Roddy, James Smith, John Smith, Eugene Sullivan^ 
Simon Sullivan, John Vaughan and Samuel Webb. 

On May 26, 1863, orders were issued from headquarters 
for volunteers for a 'Forlorn Hope', to charge in advance 
of the brigade line and storm the enemy's works on the 
27th. 

Austin E. Smith, Patrick ^oonan, Edward T. Oakes, 
from Lawrence, and six others, volunteered from Com- 
pany F. Patrick ISToonan was killed in this charge. 
Lieutenant Colonel O'Brien of the Forty-Eighth Regi- 
ment, was killed ; also many others killed and wounded". 

Again we quote from the history: 

"Captain Edgar J. Sherman (of the same family of 
Roger Sherman and General William T. Sherman), en- 
listed as a private soldier and was subsequently elected 
Captain of Company F. . 



OF A LONG LIFE. 45 



When the regiment advanced on Port Hudson, he was 
in the hospital sick of malarial fever. Hearing of the 
affair of Plains Store, the captain, somewhat relieved of 
the fever, but weak and emaciated, decided to join the 
regiment. The surgeons tried to induce him to remain a 
while longer, but not succeeding in this, gave orders for- 
l)idding it. The next morning the captain put on his uni- 
form, left the hospital, and took the early steamer for 
Springfield Landing. There he was met by the surgeons, 
who called him a 'walking ghost,' and ordered him back 
to Baton Rouge. The captain said he was not going on 
duty, but only to visit the surgeon of his regiment, and he 
was allowed to proceed. 

He was there several days, remaining with Dr. Hurd, 
when he learned that there was to be a charge on the 
enemy's works the next day. He at once determined to go 
on duty. The colonel and surgeon advised against it, the 
doctor saying, 'Captain, if you go into this fight and are 
not killed, your fever will come back, and you will leave 
your bones in Louisiana'. Captain Sherman made the 
long march that night, with the aid of his soldiers, and led 
his two companies which carried the colors in the charge 
next day. When the charge did not succeed, and the order 
came to get off the field, the captain finally reached the 
ravine on the left, and was subsequently carried on a 
stretcher to the rear. Dr. Hurd found him exhausted, 
with the fever returning, and ordered him sent at once to 
the hospital at Baton Rouge. 

Just as the captain was being put into the ambulance, 
he said to Dr. Hurd: 'It is too bad about poor Captain 
Todd; he went down right in front of me, and we went 

right on over his dead body'. 'ISTot by a d d sight!' 

said the doctor. 'I took an old French bayonet, three 
inches long out of his mouth, and he is all right'. 

Captain Sherman was seriously and dangerously ill for 
some time, and it was feared that the doctor's prophecy 
might become true, — that the captain would 'leave his 
bones in Louisiana' ; but he recovered sufiiciently to return 
home with the regiment. 

Officers and men were so much needed at the time that 



46 SOME EECOLLECTIONS 



Captain Sherman's disobedience of the order 'not to leave 
the hospital', was condoned, and upon the recommendation 
of his superior officers, he was brevetted major 'for gallant 
and meritorious services'. 

Captain Sherman is the only man in the regiment who 
was promoted or brevetted for 'gallant and meritorious 
services'. Captain Sherman has often declared that much 
of the credit which his company received for its discipline 
and good conduct in action was due to his orderly 
sergeant, Charles H. Littlefield, of this city, and that most 
of the men from this city made excellent soldiers". 



At Washington and Fort Delaware. 

There was a hiatus between the expiration of the veter- 
an regiments and the coming in of the new three years 
organizations, when the Government — being disturbed by 
General Early's raid on Washington, called for the ser- 
vices of regiments for one hundred days. Adjutant 
General Schouler telegraphed me early in July, 1864, to 
come to Boston. He urged me to raise a company in Law- 
rence for this service, and to do it at once, as the 
authorities at Washington were in a hurry for these regi- 
ments. The following is from Chaplain Hanson's history 
of the Sixth Regiment. 



"Company K, Lawrence. 

This company was a new one, raised mostly in Law- 
rence upon the governor's call for five thousand one hun- 
dred days' men. Recruiting commenced on the eleventh 
of July, and the company was filled on the evening of the 
twelfth, went into camp on the thirteenth, was mustered 
into service on the fourteenth, and on the fifteenth and 



OF A LONG LIFE. 47 



sixteenth were clothed, armed, and equipped throughout, 
and ready to move on the seventeenth, — just six days after 
the first movement was made. 

Captain Sherman, says the Lawrence American, under 
extraordinary difficulties, has already raised one company, 
enlisting himself as a private, from which he was pro- 
moted to a captaincy, and as we personally know, no 
braver or more faithful officer has left our city; always 
attentive to the needs of his men, and even when weak 
and emaciated with sickness, as we saw him at Port Hud- 
son (in the Forty-Eighth Massachusetts), leaving the 
hospital against the positive prohibition of the surgeon to 
lead his men in the assault". 

As we were the first company ready, under this call, 
we were put into the Sixth Regiment. We went to Wash- 
ington and remained encamped on Arlington Heights, 
until the Rebels disappeared from the vicinity of Wash- 
ington, when we were sent to Fort Delaware, where we 
guarded rebel prisoners during the remainder of our term 
of service, which prisoners were captured by General 
Sheridan in the Shenandoah Valley. 

Fort Delaware is a fine fort on Pea Patch Island in 
the Delaware river, some forty miles below Philadelphia. 

The services of the soldiers were hard, but that of the 
officers easy — quite different from what I had experienced 
in Louisiana. We had some twenty thousand prisoners. 

I served on several Courts Martial. 

I returned home and was mustered out of service, 
October 27, 1864. 



CHAPTER IV. 



represe:n^tative a:n'd district 

ATTORl!^EY. 



On the evening of November third, 1864, at a caucus 
of the Republicans, I was nominated as a Representative 
to the General Court of Massachusetts, the ballot being as 
follows : 



Whole number of ballots, 317 

ISTecessary for choice, 159 

Scattering, 2 

W. F. Gile, 18 

S. S. Crocker, 29 

Zener Whittier, 53 

Edgar J. Sherman, 215 

The nomination was made unanimous. 

The next morning Mr. Whittier called all the candi- 
dates into his store, and said, "Last night as I was going 
home, I met Sam Allison (who was regarded as something 
of a wag), and said to him, come up to the caucus to- 
night. "What's up" ? said he. "To nominate a representa- 
tive to the Legislature", said I. "Who's up" ? said he, 
"Gile, Crocker, Sherman and myself", said I. "My 
God", said Allison, "has it got down as low as that" ? 



OF A LONG LIFE. 49 



I was elected, and on January following (1865), took 
my seat in the House. Hon. Alexander H. Bullock (since 
Oovernor) was the Speaker. I served on the Judiciary 
Oommittee. 



The Genekal Coukt. 

I was re-nominated and re-elected the next year (1866). 
The Hon. James M. Stone was speaker, and I served as 
Chairman on the committee on Military Claims and 
Federal Relations, and I also served as a member of the 
Committee on Cape Cod Railroad Extension. 

The legislature during the session of 1866 was called 
upon to elect a Major General of the Militia. 

General Benjamin F. Butler was elected in the Senate 
without opposition, but when the matter came before the 
House, a week or ten days later, there developed a lively 
opposition which united upon General W. F. Bartlett of 
Pittsfield. 

The first ballot showed General Butler in the lead with 
General Bartlett, General E. W. Hinks and Colonel 
Clark of Amherst, in the field, with no choice. 

Then Moses Kimball of Boston, the leader of the 
House, made a strong speech for General Bartlett, putting 
especial emphasis on his bravery at Port Hudson, etc., 
and just as he was finishing a point of order was raised, 
that debate was not in order after a motion to proceed to 
Fallot, which the speaker sustained. Colonel iJ^ewell A. 
Thompson of Boston, a friend of General Butler, tried to 
speak, but the speaker ruled that he was out of order. 

I thereupon moved that the member from Boston 
{Thompson), be allowed to address the House, remark- 
ing that it was fair to hear both sides. My motion was 
■carried. 



50 SOME RECOLLECTIONS 

After Colonel Thompson had made a speech in favor 
of General Butler, a member, a one-armed soldier, with- 
out objection as to order made an excellent speech for 
General Bartlett. 

I addressed the House substantially as follows: 

I know General Bartlett, having served in the same 
brigade with him at Port Hudson. The gentlemen from 
Boston (Kimball) has not commenced to do justice to 
General Bartlett. I*^o braver or better officer served in 
the late war. If General Bartlett could or would accept 
the position I would vote for him; but he is in Europe 
with a year's leave of absence from the War Department, 
receiving pay of a Brigadier General, and he would not 
give that up and come home to accept this position, and 
secondly, this bill provides, that the person elected shall 
signify his acceptance in writing within thirty days, or 
the office shall become vacant. You could not get notice 
to him and acceptance in writing in thirty days. 

This is an attempt on the part of men, who do not like 
General Butler to defeat him! I fear that political in- 
fluence and jealousy is playing a part in this election. 

I care nothing for General Butler, but he was a member 
of the Militia for many years before the war, and did as 
much as any one man, if not more, to have it in condition 
at the commencement to do good service. 

If elected to this office I believe that he will do more 
than any other candidate to keep up the Militia, and for 
that reason, I am going to vote for him. 

The House took my view and General Butler was 
elected by a small majority on the next ballot. 

The Hon. Tappan Wentworth, who at the time was 
serving as a Senator, and a personal friend of the General,, 
and who was witnessing the election in the House, went 



OF A LONG LIFE. 51 



directly to General Butler's office and said, "General you 
would have been defeated badly, if it had not been for the 
speech of that young Sherman from Lawrence". 

From that time General Butler became my friend, and 
remained such until the day of his death. I had, he 
thought, prevented his receiving a blow from his enemies. 
He never forgot me or those enemies. 



EXPEKIENCES AS A LawYEE IN THE CeIMINAL AJSTD 

Civil Couets. 

While I was in company with Mr. Saunders, I gener- 
ally prepared the cases for trial — both the law and the 
evidence, and in the more important cases I acted a& 
junior. 

I had tried a few cases alone. I remember one case 
where an Irishman in Lawrence was indicted for an 
assault with a loaded gun, upon a woman, shooting her 
face full of shot. 

The young man's father had retained Mr. Saunders, 
paying him a large sum to defend his son; but when it 
came on for trial before the Superior Court at N^ewbury- 
port, I was sent there to have the case postponed. Mr. 
Saunders being engaged in Boston. It was the first case 
in order for trial. I tried hard to obtain a postponement, 
on account of Mr. Saunders absence, and because I knew 
little of the case and was unable to defend it. But Mr. 
Justice Morton remarked that the firm of "Saunders and 
Sherman" appeared for the prisoner and "Sherman" was 
present and the trial would proceed. 

I knew the only chance my client had was to try the 
case as little as possible. I asked very few questions — I 
asked if the prisoner was intoxicated. The answer was 



52 SOME RECOLLECTIONS 

"Yes". I also asked if the witness thought the prisoner 
intended to shoot, the answer was "No". I did not argue 
the case, and so the district attorney did not. 

The Judge charged the jury, they went to their room 
and I came home. That night the father of the prisoner 
<!ame into the office, and, finding that the case had been 
tried and that Mr. Saunders was not present, became very 
indignant. The next morning we all went to !N"ewbury- 
port. The jury came in with a sealed verdict, which upon 
being opened was "IlTot guilty". 

It was a miscarriage of justice. The jurors were new 
and evidently did not understand the law. I afterwards 
asked the foreman about the verdict, and he said, they did 
not think the prisoner had "malice aforethought". 

My fame as a criminal lawyer was well started. 

I tried another case, a boy for maliciously setting a 
barn on fire in Andover and he was acquitted. 

In 1864 I dissolved my copartnership with Mr. Saun- 
ders and formed a new one with Hon. John K. Tarbox 
(afterwards a member of Congress) under the firm and 
style of "Sherman and Tarbox". 

I tried one criminal case where I was not success- 
ful before the jury, but I took exceptions to the ruling of 
Mr. Justice Brigham (afterwards Chief Justice) and the 
Supreme Court set aside the verdict — (see Common- 
wealth vs. Woodbury Curtis, 97 Mass. E. 574). Soon 
after leaving Mr. Saunders I commenced a suit "Ann 
Robbins vs. Joseph Potter", which became quite noted, 
being in court some years, before the Supreme Court 
twice, and reported in Massachusetts Reports, 11 Allen 
588, and 98 Mass. R. 532. 

The following was published at the time in the Boston 
'Journal. 



OF A LONG LIFE. 53 



"A CuEious Law Suit. 

A case of some interest has just been tried in the Supe- 
rior Court of Essex County, before Judge Putnam, Ann 
Kobbins vs. Joseph Potter. 

The plaintiff is the wife of James Robbins, and, prior 
to 1860, lived with her husband in England. The defend- 
ant persuaded her to leave her husband on account of his 
drunkenness and cruelty. They came to this country in 
1860, went through the form of marriage and lived to- 
gether in Lawrence as husband and wife until the spring 
of 1864 when he turned her out of his house. She then 
brought this suit to recover the sum of $560, the amount 
paid the grocer by her at the defendant's request and up- 
on his promise to repay it. 

The defendant claims that she cannot recover because 
she has been living with him in adultery; that the con- 
tract was illegal and void, being founded upon an illegal 
consideration. The case came up for trial March, 1865, 
and the presiding Judge (Morton) ruled that the action 
could not be maintained, and ordered a verdict for the 
defendant. The plaintiff took exceptions to that ruling 
and carried the case before the Supreme Court. That 
Court set aside the verdict and ordered a new trial, say- 
ing, 'The claim is for money paid at his request and for 
debts which were due from him to third person. The 
payments, it is true, were made under circumstances that 
seem to us as scarcely to admit the conclusion that they 
were made lawfully. They were paid continuously, from 
month to month for groceries furnished to support the 
family. It was possible this promise was made from 
time to time, as she advanced the money without any 
agreement or understanding that the cohabitation should 
continue; and if the jury should find this to be the true 



54 SOME KECOLLECTIONS 

state of the case there would be no legal objection to the 
plaintiff's recovery'. 

The case was tried under the above instructions, and 
the jury found a verdict for the plaintiff for the amount 
of her claim and interest. 

E. J. Sherman for the plaintiff, D. Saunders for the 
defendant". 

I was much in doubt when the action was brought, but 
the more I considered it, the more I became convinced, 
that it was a question of fact for the jury to decide 
whether the contract was a lawful one, and the equities 
were so strong for the woman I thought she would recover. 
My old partner, Daniel Saunders, was for the defendant, 
and it being a "curious case", the court house was crowded 
to overflowing when it was reached March, 1865, before 
Mr. Justice Morton (since Chief Justice of the Supreme 
Court). 

Soon the question was raised as to the right of the 
plaintiff to maintain the action. We discussed the law 
to the court, I arguing that the judge had no right to de- 
cide whether or not the payment of the money had any- 
thing to do with the illegal cohabitation, that that ques- 
tion was for the jury. The judge decided against me, 
and I had great respect for his opinion, but still I felt 
sure he was wrong. The bar was almost all against my 
view of the law. 

The Supreme Court took my view of the law, and I 
won the verdict. It was taken to the Supreme Court a 
second time by the defendant. But that court sustained 
the verdict. 

After my client had suffered "the law's delays" for 
nearly four years, the sheriff, armed with an execution, 
put the plaintiff into possession of the house from which 



OF A LONG LIFE. 55 



the defendant had ejected her nearly four years before, 
and put the defendant out. 

I was learning that "Every tub must stand on its own 
bottom". I began to have confidence in myself, in my 
own. view of the law, and my reputation as a lawyer was 
on the increase. I had beaten my old partner in a "curi- 
ous case" which attracted much attention. After that, I 
had a good law business, and during my whole practice, 
never lacked a goodly number of clients. I was remark- 
ably successful with my cases. At one term of the court 
I gained thirteen out of fifteen cases. 



DisTEiCT Attoeneyship. 

In the fall of 1865, I ran for the office of District At- 
torney in the Essex district. 

At the Republican Convention the first ballot was as 
follows : — 

Alfred A. Abbott of Peabody, .... 47 
Benjamin H. Smith of Gloucester, . . 91 
Edgar J. Sherman of Lawrence, ... 96 

and there was no choice. On the next Abbott's friends 
Toted for Smith and he received the nomination, and then 
Mr. Abbott, who had held the office for twelve years, ran 
as an independant candidate and was elected at the polls 
over Smith. 

At the Republican Convention three years later, — the 
election was for a term of three years, — in the fall of 
1868, I ran again for the office. 

I was nominated by the following vote: 

Alfred A. Abbott of Peabody, ... 27 
Edgar J. Sherman of Lawrence, . . . 182 



56 SOME KECOLLECTIONS 



On election day the vote was as follows: 

Alfred A. Abbott of Peabody, Independent, 3305 
Edwin Ireson of Lynn, Democrat, . . 5351 
Edgar J. Sherman of Lawrence, 

Kepublican, 18,947 

One of the leading newspapers in the county had the 
following article on the district attorneyship. 

"The district is constituted of the entire county o£ 
Essex comprising four cities and thirty towns, with a 
population of 200,000, and about 40,000 legal voters. 
The district attorney is counsel for and represents the 
people; it is his duty to appear for the Commonwealth — 
the people — in the Supreme and Superior Courts, in all 
cases civil and criminal in which the Commonwealth is 
a party or interested. 

The office in the past has been held by Chief Justice- 
Parsons, Justice Story, Hon. John Pickering, Hon. 
Stephen Minot, Hon. Asahel Huntington, Hon. Stephen 
H. Phillips and Hon. Alfred A. Abbott. 

Colonel Sherman, who has just received so hearty an 
election, and who, in his own city, ran highest upon the 
ticket, receiving more votes than were given to General 
Grant, is a young lawyer of decided ability, — has already 
won a high position at the bar, and met with marked suc- 
cess in his practice, and possesses qualities which peculiar- 
ly fit him for the position". 

I commenced my duties the following January, 1869. 

At the October session following, Leonard Choate,. 
commonly called "the firebug" was tried. Judge Ezra 
Wilkinson presided. Alfred A. Abbott and Stephen B. 
Ives appeared for the defence. For a period of twenty 
years there had been in Newburyport incendiary firea 
almost every week, burning all kinds of buildings, de- 
stroying a large amount of property and several lives. 



OF A LONG LIFE. 57 



The people had become alarmed, and the administra- 
tion of Mayor Pierce was bound to find and punish the 
incendiary. The police force was doubled and private 
detectives were employed. Pursuing different lines of 
investigations the police and detectives came to the same 
conclusion as to the guilty person. 

Leonard Choate was arrested in the state of Minnesota 
upon a requisition and brought back to N^ewburyport and 
charged with being the guilty party. 

He was born in that city, a man in good standing and 
possessed of a good amount of property. He had a wife 
and several small children. 

The case was an interesting and important one, the 
evidence was mostly circumstantial. All the fires had 
been set by means of a box with a candle inside, carefully 
prepared, so that the fire would take effect when the 
candle burned to the bottom of the box. Some of the 
property which would have come to Choate as an heir was 
burned. There seemed to be no motive for these burnings. 
The only thing he seemed to enjoy was to hear the fire 
bells ringing and great excitement in the city — the citi- 
zens so alarmed that they could not sleep — and he up in 
the cupola of his house, saying to himself, "Don't they 
wish they knew who was doing all this" ? I do not believe 
any of his family or friends knew that he was the "fire- 
bug". He was the only possessor of the great secret. 

He was indicted in many coiiftts, in many indictments. 
With the assistance of the officers we prepared the case 
with great care. The trial lasted nine days and the public 
interest was very great. I was greatly relieved when I 
found that his counsel were not to plead insanity as a 
defence. 

Choate was convicted and his case was carried to the 
Supreme Court on exception, but the exceptions were 



58 SOME EECOLLEK!TIONS 

overruled (see Commonwealth vs. Leonard Choate re- 
ported in 105 Mass. R. 451). He was subsequently 
sentenced to state prison for life. 

At last account he was alive in the state prison. While 
I was Attorney General there was some talk about a par- 
don for Choate. I think his friends had a fear that it was 
not safe to have him at large ; that he had a mania for set- 
ting fires. 

I received a letter from the mayor of E^ewburyport 
thanking me in behalf of the people for the "splendid 
manner" in which I had conducted the prosecution. 

One paper had an article as follows: 

"The friends of the District Attorney comparatively 
new to the position congratulate him upon the success in 
this most difficult case, for some of the points ruled upon 
were very near the line of evidence. Cool, wary, watch- 
ful, vigilant, careful and earnest throughout, with the 
most powerful counsel in the country as his opponent, his 
conviction of Choate fairly establishes his reputation". 



Some Intekesting Cases. — "Wightman". 

The Town Treasurer of Georgetown, who was also a 
druggist, carried the money collected during the day to 
his dwelling house at night, putting it in a safe there. 

One dark, rainy night, about 10.30, as he was going 
home, having the money in a paper box under his arm, 
he was knocked on the head by what was supposed to be 
a sand bag. He threw away his box and cried "Murder, 
Murder!" His assailants ran away. Friends came with 
a lantern and they found the money all safe. 

Subsequently a man, who called himself Wightman, 
was arrested for an attempt at highway robbery. He was 



OP A LONG LIFE. 59 



one of the finest looking men I ever saw, six feet and four 
inches in height. 

When the trial was held he defended himself, showing 
that he was an able lawyer and an educated man. He 
made one of the ablest arguments ever made by a prison- 
er. He was convicted, the evidence being very strong 
against him. 

I said to him, "Wightman, I would like to know your 
history, and if you see fit to tell it to me, I will not give 
you away". 

His true name was not Wightman, but he never told 
me his right and true name. He afterwards gave me 
what I am inclined to believe was a true story. 

He was born in Virginia, his father being a clergyman. 
He graduated at one of the colleges in that state and it 
was the purpose of his parents that he should be a clergy- 
man, he however, studied law and was admitted to the bar. 

He insisted that he had been acting as a "confidence- 
man" for fifteen years ; that he never before was guilty of 
any acts of violence like robbery or other crime; that in 
his real profession he committed only one kind of crime. 

He would go into a large jewelry store in l^ew York 
and introduce himself. 

I am Mr. John Brown of Albany. We are to give our 
clergyman a present of a gold watch — I want the finest 
watch you have. He would pick out the watch at the 
lowest cash price. 'Now, as you do not know me, do up 

the watch and send it by Express to my address, 

Albany, marked C. O. D. 

As he was about leaving the store, he would say. By 
the way, can you let me write a letter ? He expected they 
would give him a seat at the desk with one of their letter 
heads ; and upon that he would write : 



60 SOME RECOLLECTIONS 

"We have just sent a watch to the address of John 
Brown by your express, marked C. O. D., but since doing 
up the package we find that Mr. Brown is entirely re- 
sponsible, you may therefore deliver the package by col- 
lecting express charges. 

Truly yours, 

(Jewelry firm name)" 
by 

He would then put the letter in an envelope directed 
to the express company at Albany, and ask the firm to 
send it with the package. The next day an accomplice 
would appear at Albany and obtain the watch by paying 
the express charges. 

He declared that for fifteen years he had succeeded in 
"playing that game" in every large city in America, 
realizing more than a hundred thousand dollars, and never 
had been caught. He said his great trouble had been in 
disposing of the property thus obtained, and that he had 
accomplices, who took the property of all kinds, which he 
obtained in this way, at about one-half or two-thirds of 
its real value. 

He told me how I could find out and corroborate his 
story; that there was a law suit between the jeweler and 
the express company, in which the express company 
claimed that the jeweler should lose because the loss was 
occasioned by giving the "confidence-man" the letter heads 
and sending the letter along with the package. 

I did confirm this story, Wightman was sentenced to 
seven years in the state prison. He seemed very much 
broken down, and declared that his health was poor, and 
that he should not live out his sentence. 

!N'early seven years afterwards, while I was Attorney 
General, a man came into my ofiice, and asked, "Do you 



OF A LONG LIFE. 61 



know me" ? After a moment I replied, "Yes, you are 
Wightman". 

He declared, that henceforth he was going to live an 
honest, upright life. He wanted I should give him a letter 
of recommendation to Jordan, Marsh and Co. I said yes, 
but I must tell them all I know about you, except what 
you told me in confidence. 

He thought I looked incredulous, when he said he was 
going to reform, and asked, if I did not believe him. 
Without replying, I said, I'll tell you what to do. When 
you settle down and become engaged in some honest em- 
ployment, write me a letter and tell me about it. I never 
have received that letter ; but it was not a great while after 
that interview before I saw in the newspapers accounts that 
the "same game was being played" in different parts of 
the country. 



Stephen B. Ives, Jk. 

Stephen B. Ives, Jr., of Salem was a very able lawyer. 
He was a graduate of Harvard College and the Harvard 
Law School. He was a great friend of Mr. Abbott, my 
predecessor as district attorney, and he seemed to manifest 
a great dislike towards me, partly, I thought, because I had 
ousted his friend, and also as he regarded me as not quali- 
fied for the position. Some of the Salem attorneys at that 
time, with some pride concerning their own city, looked 
askance at the Lawrence lawyers as coming from a manu- 
facturing city. Mr. Ives and I tried a great many eases 
on opposite sides. He was far my superior in knowledge 
of 'the law and in general ability, but he had an unfortu- 
nate disposition, and a bad temper, which he could not 
always control, and especially when I was his opponent. 



62 SOME EECOLLECTIONS 

I fear I took advantage of this weakness. Mr. Ives also 
justly prided himself upon his literary attainments. 

He defended a good many eases in the criminal court, 
soon after I became the District Attorney. At one criminal 
term of the court before Judge Putnam, Mr. Ives saved 
many exceptions to the rulings of the court. In arguing 
a case to the jury, Mr. Ives said, ''The District Attorney 
is disposed to compliment me. 'Damn with faint praise, 
assent with civil leer, and, without sneering, teach the rest 
to sneer', as Shakespeare says". 

The District Attorney. "Mr. Ives, your quotation is 
right, but your author is wrong. Pope is the author". 
"'No, he is not ; that is from Shakespeare", said Mr. Ives ; 
"anyway, I will refer it to the judge". "No, no", said 
Judge Putnam, "I am afraid you would save an excep- 
tion". A pretty strong intimation that he would have to 
decide against Mr. Ives. The story soon appeared in the 
newspapers, and the bar, and especially Mr. Ives' friend, 
"worried the life out of him" over being corrected on such 
a matter by a gentleman who made no pretentions to liter- 
ary ability. 

Mr. Ives died at the age of 54. Much too soon, as he 
was a man of high character and standing and had a great 
career of usefulness before him, lamented by the bench 
and bar. 

While District Attorney and trying a physician for 
procuring an abortion, his defence being that he never 
had anything to do with the woman in any way, he took 
the stand in his own defence, and so testified. 

There had been evidence in the case showing the size 
of the foetus in this case. In cross-examination, I asked 
him, "Doctor, how large is a foetus at four months" ? He 
answered, forgetting his defence, "Usually it is about 



OF A LONG LIFE. 63 



(measuring with his hands) so long, but this one was so 
long". 

I had no idea of catching him ; my question was an in- 
nocent one, but his answer nearly took my breath away, 
and I looked at his counsel, Henry P. Moulton and William 
H. IsFiles, and the answer had seemed to affect them more 
than it did me. I said to the witness, "That is all Doctor", 
and he left the witness stand, not realizing that he had 
given his case away. 

It was one of those rare instances, which sometimes 
happens in Court, where a defendant is trying to avoid 
the consequences of his crime by denying the truth, that 
for the moment he forgets and speaks the truth. 

In my argument to the jury, I remember saying, "Gen- 
tlemen, when the defendant forgot his defence and told 
the truth on the witness stand, you must have observed 
that one of his counsel, who has a red face, turned white ; 
and the other who has a very white face, turned red". 



CHAPTER V. 



REGISTER I:N" BANKRUPTCY AE^D ASSISTANT 

ADJUTANT GENERAL AND ATTORNEY 

GENERAL. 



March 2, 186Y, Congress passed an act to establish a 
uniform system of Bankruptcy throughout the United 
States. The appointment of Registers was to be made 
by the nomination of the Chief Justice of the Supreme 
Court and confirmed by the Judges of the District 
Courts. 

I was recommended by Hon. Marcus Morton, Justice of 
the Superior Court, Hon. George F. Choate, Judge of 
Probate, Hon. George B. Loring, Hon. Nathaniel P. 
Banks, member of Congress and many others, and re- 
ceived the appointment. 

After I was elected to the office of district attorney, I 
felt that perhaps it would seem unreasonable to hold both 
offices, although there was nothing in the law to prevent. 
I wrote a letter to the Chief Justice, saying that I would 
resign the office of Register as soon as I closed up the 
cases before me, and recommending that another register 
be appointed to take the new cases. 

Hon. Charles J. Noyes, afterwards Speaker of the House 
of Representatives, was nominated by the Chief Justice, 
but opposition to his appointment was made by the people 
of Haverhill, where he then lived, before Judge Lowell, 



OF A LONG LIFE. 65 



the district judge. After discussion of his fitness was 
made before the Court, his nomination was withdrawn. 
No other nomination was made, and I continued to hold 
the ofiice until the law was repealed. 



A Steal Feusteated. 

I had a case before me, where the account of the as- 
signees showed $19,000 worth of assets, and it was pro- 
posed to declare a dividend for the creditors of about 
$4,000. I looked over the account and asked if any one 
objected to it. 'No one did object. I saw that the two 
assignees had charged for services $4,000 each, Edward 
Avery, who had acted as their attorney, had charged 
^3,200 ; other attorneys, who had been allowed to come in 
and prosecute some claims for the estate, had charged 
$1,000 ; and so on, making the amounts count up to nearly 
$15,000. 

I remarked in the open meeting, "This looks like a 
steal, I cannot allow such an account without evidence". 
"Very well" they said, "They could satisfy me that it 
was all right". I commenced to hear evidence, — the more 
evidence I heard the worse the account appeared. After 
we had gone on for fifteen minutes, I said, "I will allow 
the assignees $400 each, I will not allow Mr. Avery any- 
thing, as I do not think he has acted in the interest of the 
creditors; I will allow the other attorneys their charge 
for $1,000, as they have earned it, etc., etc., making the 
amount of my allowance about $4,000 (so that there 
would be about $15,000 for a dividend), or you may go 
directly to Judge Lowell without my passing upon the 
account". Well they said they would go to the Judge. 

Two weeks later, I was holding a meeting in the upper 



66 SOME RECOLLECTIONS 

court room, and Judge Lowell sent for me. As I entered 
his court room, the above case and accounts were being 
heard before him. The Judge said, "Mr. Register it has 
appeared in this hearing that you partially heard and con- 
sidered this account" ? "Yes", I replied, "I only heard 
it for about fifteen minutes". "I want you to state just 
what occurred, what you said and what others said", re- 
marked the judge. So I stated literally what had hap- 
pened before me. "That will do", said the judge, and I 
walked back to my duties. 

The next week, I found that he had adopted my figures 
in making his decision. The following week, I was 
called into his lobby and highly complimented upon the 
stand I had taken. He said that if all the courts and 
registers would administer the law as he and I were trying 
to administer it, it would be for the real benefit of cred- 
itors and that lawyers and assignees would not be allowed 
to steal the estates. 

After that, I found I was a favorite with Judge Lowell, 
and if there was any case where he suspected an attempt 
to steal, it was referred to me. 



Judge Otis P. Lord. 

The friends of Alfred A. Abbott were a good deal dis- 
turbed on account of my election to the office of district 
attorney over him, ousting him from an office which he 
had held for twelve or more years. Jealousy played its 
accustomed part. 

Abbott was a protege of Otis P. Lord, then a judge of 
the Superior Court, living in Salem and he frequently 
held court in Essex County. He was a great lawyer and 
able man, but so thorough a partisan that it greatly in- 



OF A LONG LIFE. 67 



terfered with his usefulness as a judge. His friends now 
generally believe that had he remained at the bar, he 
would have become one of the greatest lawyers of his time. 

The Judge made things very uncomfortable for me, 
both in the criminal and civil courts, not quite so bad in. 
the civil, as there I had the right of exception. 

In arguing a case in the criminal court, he interrupted 
me, so I took my seat fifteen times, and when he finished 
what he had to say I proceeded. 

The interruptions were something like this: — 

Judge Lord. "Mr. Attorney, I do not propose to allow 
you to misrepresent the evidence". 

The District Attorney. "But I am not misrepresenting 
the evidence, I am stating it exactly as the witness gave 
it on the stand". 

Judge Lord. "'Ro you are not". 

District Attorney. "I am willing to leave that question 
to the jury, and your honor will have to tell them that it 
is for them to decide". 

Judge Lord. "Proceed with your argument". 

A few minutes later: Judge Lord. "Mr. Attorney, 
you may recall the witness, and see what he says about 
this evidence". 

District Attorney. "I have no occasion to recall the wit- 
ness, I am satisfied with his evidence". 

After many more interruptions, suggesting and almost 
ordering the Attorney to recall the witness, the Attorney 
firmly but respectfully declined to do so, stating that he 
had no objection to the Judge recalling him. Finally the 
Judge recalled and examined the witness, who stated the 
evidence exactly as claimed by the Attorney. 

Judge Lord. "You may proceed with your argument 
Mr. Attorney". 



68 SOME RECOLLECTIONS 

For nearly seven years the Judge and District Attorney 
did not recognize or speak to each other, except in court 
when they were compelled to. 

During all this time, I was always respectful to the 
Court, but I stood my ground for the rights of my clients. 
Finally, I felt that "forbearance had ceased to be a 
virtue", and I with others drew up and signed the 
following : 

"To the County Commissioners of the County of Essex: 

By the Statutes of the Commonwealth the property of 
the County is committed to your care, and it is your duty 
to see to it, that the public buildings are appropriated only 
to legitimate public uses. 'No other or different use of the 
public property should be allowed, except by common and 
unanimous consent. 

Upon the question of what is a legitimate use of public 
property, minorities even have rights which should be 
respected and protected. A letter has been in circulation 
for signatures among the members of the bar of this 
county, addressed to, and requesting Judge Otis P. Lord, 
of the Superior Court, to sit for his portrait, that it may 
be hung upon the walls of the County Court House at 
Salem. 

As this letter may result in official action on the part 
of your board, we respectfully remonstrate against the 
carrying out of the purpose of the request, and assign 
some of the reasons that constrain us in so doing. 

In the first place, it is not customary to erect monu- 
ments to the living. When the final scene has closed a 
worthy life, an appreciative people may well set up mon- 
uments; only the most prominent and exceptional services 
to the public can change such a well-established propriety. 
While all the members of the bar and the public generally 
concede to Judge Lord great qualifications as a lawyer 
and advocate, yet we believe it is as well acknowledged 
that these qualifications are not such as peculiarly fit him 
for the office of judge. And if any member of the bar was 



OF A LONG LIFE. 69 



called upon to select from the bench the judge in refer- 
ence to whose conduct officially, complaint was most 
general, he would be compelled to name Judge Lord. 

The letter referred to, which has been quite generally 
signed by the members of the bar in this county, is not, 
in our opinion, evidence of any general feeling favoring 
such marked recognition of magisterial excellence; and 
we submit that the request to sign such a letter from 
the personal and intimate friends of Judge Lord, to the 
members of the bar, who, to a greater or less extent are 
engaged in trying cases before him, is not only a matter 
of questionable propriety, — especially so when the pecu- 
liar characteristics of Judge Lord are so well known, and 
he so often holds court in this county — but the letter it- 
self, obtained under such circumstances, is of but little 
value as tending to show any professional, much less any 
public sentiment in favor of a project which should only 
be carried out upon the most manifest and voluntary ex- 
pression of such sentiment. 

Again we submit, it would neither be wise nor consid- 
erate, to select one judge from his bretheren upon the 
bench, and, previous to his retirement from active duty, 
to distinguish him from the other judges of the Supreme 
and Superior Courts, who each have occasion to hold 
court in the same room where it is proposed to hang the 
portrait of Judge Lord. "Comparisons are odious", and 
this would be the most odious and unjust of all compari- 
sons. 

While the above are by no means all the reasons that 
could be assigned, yet they are, in our opinion sufficient 
to justify you, as servants of the public, in refusing the 
use of the court house for the purpose indicated. 

Edgae J. Sherman"^ 
Wm. S. Knox, 
Elbridge T. Bailey, 
Charles U. Bell, 
and fifteen others. 



January 1, 1875". 



YO SOME KECOLLECTIONS 

The letter was presented to the County Commissioners 
and a public hearing asked for. 

The friends of Judge Lord said they would not ask to 
have the portrait hung in the court house while there was 
so much opposition. 

Subsequently, Governor Gaston nominated Judge Lord 
to the Supreme Court. Many of the lawyers, who had 
signed the petition to put Judge Lord's portrait in the 
■court, came to us who had signed the remonstrance, and 
asked us to help defeat his confirmation before the Repub- 
lican Council. 

I, for myself, replied no, that he could not do so much 
injustice there, as on the Superior Court, as he had six 
Associates there to prevent injustice. 

Subsequently at an Essex Bar dinner, Judge Lord 
came more than half way, extended his hand and I took 
it. From that time he always treated me kindly and fair- 
ly. It was fortunate that this was so, as after his death, 
I, as Attorney General, was required to present, March 22, 
1884, the Resolutions of the Bar upon the death of Judge 
Lord, to the Supreme Court (see 137 Mass. Report, 591). 

My remarks were in part as follows: — 

May it please your honors: 

A distinguished citizen of the Commonwealth has died ; 
an upright judge, who devoted more than twenty-three 
years to the administration of justice has gone; a lawyer 
of remarkable ability, a leader of the bar, has passed over 
to the majority; and a stately form and figure, and a 
familiar face, indicative of great intellectual strength, 
crowned with the silver of more than three score years and 
ten, will be seen among us no more. It is appropriate, on 
an occasion like this, to pause and consider his character, 
the lessons he has left us, and take note of his departure. 



OF A LONG- LIFE. 71 



The opinions which Judge Lord has written, in behalf 
of this court, are contained in the reports, and will be pre- 
served for our future use and benefit. He was a good 
writer, but a better speaker; he was an orator, and will 
be most appreciated and best remembered by us, who had 
the opportunity to see and hear him as a lawyer, arguing 
an important cause to the court or jury, with a power and 
eloquence rarely excelled, or, as a judge charging the jury 
in a capital trial, with a clearness of diction, terseness of 
expression, and comprehensiveness of statement, unsur- 
passed". 



Death of my Oldest Bkothek. 

My oldest brother, Henry Luther Sherman, an at- 
torney, had suffered more or less from ill health, and he 
commenced early in the year 1868, to show signs of 
paralysis. His wife died of consumption in March. He 
came to my house and stayed until sometime in June, and 
then under the physician's advice he went with a nurse to 
Springfield, Vermont, to the home of our sister, Mrs. 
Malvina E. Backus. There he continued to suffer until 
September, when he died. He left two children, Henry 
Leslie Sherman, now cashier of the Lawrence N^ational 
Bank, and Mrs. Alice Sherman Taylor, now living in 
Methuen, Massachusetts. 

My brother when hobbling around on crutches, before 
going to Vermont, met Samuel Allison, before referred to 
in this volume, who was inclined to be somewhat profane 
•and a good deal of a wag, who was also on crutches, having 
suffered much from inflammatory rheumatism. They 
talked together of their troubles and misfortunes. Finally 
they parted, bidding each other good-day. Soon my 



72 SOME RECOLLECTIONS 

brother heard Mr. Allison shouting to him, and he 
hobbled back to the corner of the street where they met 
again. "Well", said Mr. Allison, "Mr. Sherman you 
must remember that whom the Lord loveth he chasten- 
eth". 



Assistant Adjutant General. 

On the 21st of August, 1867, I was commissioned by 
Governor Bullock as Assistant Adjutant General and as 
Chief of Staff, in the Division of the Militia, with the rank 
of colonel. 

Major General Benjamin F. Butler commanded the 
division. The staff was as follows: 

Colonel Edgar J. Sherman, Assistant Adjutant General, 
Chief of Staff ; Colonel York G. Hurd, Medical Director ; 
Lieutenant Colonel George J. Carney, Assistant Quarter- 
master General ; Lieutenant Colonel William H. Lawrence, 
Assistant Inspector General; Major Roland G. Usher, 
Aid-de-camp ; Major Edward J. Jones, Aid-de-camp ; 
Major Edward L. Barney, Judge Advocate; Major John 
W. Kimball, Engineer. 

General Butler was then a member of Congress. 

An order was issued requiring all communications to 
the headquarters of the division to be addressed to the 
Assistant Adjutant General at Lawrence. From that time 
until 1876, when the division was abolished, I practically 
managed the division, except at muster each year, when 
General Butler was present. The general was away and 
did not desire to be troubled with the details, so he re- 
quested me to attend to the duties, expressing confidence 
in my ability to do so. 




COLONEL EDGAR J. SHERMAN 
Assistant Adjutant General, Massachusetts Militia, 1867 




C 5 0) 

CO if) 



OF A LONG LIFE. 73 



The duties of the office required more or less time, but 
I was interested in the militia and enjoyed the service. 

In September in the year 1870 there was an encamp- 
ment of all the militia of the Commonwealth at Concord. 
It was the first muster of all the militia since the war. 
The Governor, William Claflin, attended the encampment 
and reviewed the troops, remained on the field over night, 
and there was a grand reception in the big tent in the 
evening. The militia was in good condition and the en- 
campment was a grand success. 



A Tkip Abkoad. 

In the summer of 1875, in company with Colonel Roland 
G. Usher, Ephraim A. Ingalls, and Charles H. Hudson of 
Lynn, Andrew C. Stone (afterwards Judge of the Police 
Court of Lawrence) and I took a trip abroad. We sailed 
from New York on steamer City of Richmond, June 26th, 
1875, and arrived in Queenstown on the evening of July 
4th. 

We left the steamer there, visited Cork, the Lakes of 
Killamey and Dublin. Then visited Old Chester, Strat- 
ford-on-Avon, and from there went to London, where we 
remained about a week. 

We went from London to Brussels, visited the battle- 
field of Waterloo, driving out from Brussels, going over 
nearly the same route which Wellington's troops took to 
reach that place. We went from Brussels to the Rhine, 
and up that river as far as Strasburg, across the country 
to Switzerland, visited Lucerne, and up Rigi, through 
Switzerland to Geneva. From there to Paris, where we 
remained nearly a week. About Paris we saw many 
marks of the war between France and Germany. 



Y4 SOME EECOLLECTIONS 

We returned to London, and after a few more days 
there came to Liverpool, and sailed in the City of Berlin 
for 'New York. I arrived home about September 1, in 
season to meet my youngest child, my daughter Maude, 
(now Mrs. F. H. Eaton of Lawrence), who was born 
September 5th, 1875. 

James A. Gillis of Salem, joined our party in London. 

My companions were agreeable gentlemen, good travel- 
ers, and'' we had a pleasant and enjoyable vacation. 

They have all since, except Mr. Gillis, passed over to 
the great majority. 

The Attoeney Generalship. 

In the fall of 1882 I was a candidate for Attorney Gen- 
eral. The first mention of the subject, which I saw, was 
in the Lynn Transcript, and was as follows: 

"There are evidently to be some changes in the republi- 
can state ticket this year. Hon. George Marston of l^ew 
Bedford, the attorney general, it is understood will de- 
cline a nomination for that office. The practice of pro- 
moting judges from the Superior to the Supreme Court, 
and district attorneys to the ofiice of attorney general, is 
a wise one ; such promotion of deserving ofiicials being the 
best kind of civil service reform. We have, in Essex 
County, a district attorney who is acknowledged to be 
a faithful, competent and deserving ofiicer, and who is one 
of the ablest and the best in the Commonwealth ; while we 
should dislike to lose his experience and efiiciency in his 
present office, yet he deserves to receive the honor of being 
elected attorney general, an office for which he is par- 
ticularly well fitted, and which he would fill to the entire 
satisfaction of the public and with great credit and honor 
to the state. We sincerely hope that for this office the 
coming republican state convention will nominate Colonel 
Edgar J. Sherman of Lawrence". 



OF A LONG LIFE. 75 

It was followed by articles in the "Dedham Trans- 
cript", the "Haverhill Daily Bulletin", "Lowell Courier", 
"Bristol County Kepublican", "Essex Eagle", "Spring- 
field Union", "Lowell Mail", "Salem Gazette", "Lynn 
Union", "Maiden City Press", "Boston Herald", "Taun- 
ton Daily Gazette", "Boston Traveller", "Newburyport 
Herald", "Lawrence American", and many other news- 
papers. 

At the Republican convention at Worcester, Septem- 
ber, 1882, the informal ballot was as follows: 



Edgar J. Sherman of Lawrence, had 



400 
322 
95 
98 
10 



James M. Barker of Pittsfield, had 
Edward P. Brown of Boston, had . 
W. S. B. Hopkins of Worcester, had 
Scattering, 

and there was no choice. It was moved to nominate me 
by acclamation. After speeches by General William Cogs- 
well of Salem, Major George S. Merrill of Lawrence, in 
favor of the motion, and General Morris Schaff against, 
the motion was carried, and I was nominated. 

On election day the vote was as follows for Attorney 
General : 

Edgar J. Sherman of Lawrence, . . . 137,008 

George E. Very of Worcester, .... 114,453 

Elmer A Snow of Athol, 4,265 

Samuel M. Fairfield of Maiden, . . . 2,098 

It was the year that General Butler was elected Gov- 
ernor and Oliver Ames, Lieutenant Governor. 

On the last of December, I resigned the office of district 
attorney, which I had held for fourteen years, having been 
elected five times, for a term of three years each term and 
having a year more to serve. Governor Long appointed 
Henry P. Moulton of Salem to fill the vacancy. 



76 SOME RECOLLECTIONS 

The office has since been held by Henry F. Hurlburt of 
Lynn, and William H. Moody of Haverhill, now Justice 
of the Supreme Court of the United States. 

I was renominated and elected to the office of attorney 
general for the four succeeding years. James M. Barker, 
who was the leading candidate for attorney general 
against me, in the republican convention, was in December 
of that year, appointed a justice of the Superior Court. 
In 1891 he was appointed a justice of the Supreme 
Judicial Court, which position he held until his death in 
1905. There was no jealousy in Judge Barker's make- 
up and we became firm friends. 



Sudden Illness. 

I had been working very hard for several years prior 
to my election as attorney general. 

On August seventh, while talking with the Governor in 
the executive chamber, I remarked to the Governor, "There 
is something the matter with me. I am losing my 
memory". 

Governor. You look all right. You know me, don't 
you? 

Sherman. Yes; you are Governor Butler. 

Governor. You know that portrait on the wall, don't 
you? 

Sherman. Yes; that is Governor Everett. 

Governor. Where did you come from this morning, 
Gloucester or Lawrence? 

Sherman. I do not know. 

It was ascertained that I had lost my memory for the 
past, although I knew and appreciated the present per- 
fectly well. 



OF A LONG LIFE. 



YT 



Dr. Ayer, who lived near the State House, was sent for, 
and he took me to his house and sent for Dr. George F. 
Jelly. I was put to bed and given medicine. Six hours 
afterwards, I awoke from a sleep and found myself in a 
strange house. I could not then recall any of the transac- 
tions of that day. Up to that time, the day was a blank 
to me. 

In the meantime, the Governor had sent for Mrs. 
Sherman, and I overheard her talking with the doctors in 
an adjoining room, in which the physicians were evidently 
trying to find a cause for such an attack. She stood up for 
me well, denying that I had any bad habits. 

The next morning, I cross-examined the doctors as to 
their opinion of my future. Must I give up my profes- 
sional work entirely? Should I have more attacks of 
unconsciousness, and finally die in one? I insisted upon 
being told "the truth, the whole truth, and nothing but the 
truth". 

They said I had had a sudden and violent attack, which 
had caused unconsciousness for several hours, but that I 
had come out of it with a clear mind, and that there had 
been no paralysis, which was encouraging. They were of 
the opinion, with absolute rest for a month or more, I 
would gradually come out all right. They could find no 
cause for the attack, except overwork. 

I did as I was advised ; I did no work ; did not read the 
newspapers or write a letter for over a month. The life 
insurance agents had been to see me several times, trying 
to induce me to take policies on my life. Soon after my 
return to the office, they came again. I welcomed them 
cordially, told them I would take all the insurance I could 
obtain; but, I said, before you take my application, you 
had better see Drs. Ayer and Jelly, and if you do, I do 
not believe you will see me again for at least a year. 



78 SOME RECOLLECTIONS 

I guessed right. In about thirteen months they came 
again. They told me that the doctors said that if I did 
not have another attack or any unfavorable symptoms for 
a year, I might be a fair risk. 

I made an application to one of the old line companies, 
and, after a most thorough physical examination, they 
gave me a ten years' endowment policy. I took policies in 
the assessment and fraternal companies. At the end of 
the ten years I was paid the amount of the old line endow- 
ment policy. I have outlived all the assessment com- 
panies, and all the fraternal, except one, and I must die 
soon, or I shall outlive that one. 



CHAPTER VI. 



ATTORI^EY GENERALSHIP,— Con^mwed 



Dr. Feanklin Pieece. 

While I was Attorney General, one, Dr, Franklin 
Pierce, a practising physician in Worcester, killed a 
woman, Mary A. Bemis, sick of fever, by soaking her in 
kerosene oil. It seemed to be a clear case of killing by the 
malpractice of a quack. 

It had been decided by our Supreme Court in 1809 in 
case of Commonwealth vs. Thompson, 6 Mass. !R. 134, 
that a physician killing a person under such circumstances 
was not liable for murder or manslaughter. Most of the 
other states of the Union had followed that decision. The 
English decisions were the other way, holding that a phy- 
sician killing a patient by criminal negligence was guilty 
of manslaughter. 

I advised the District Attorney to instruct the Grand 
Jury to find an indictment against Pierce for man- 
slaughter, provided they found him guilty of criminal 
negligence, foolhardy presumption, etc. Pierce was in- 
dicted, and subsequently tried before Justice Pitman, and 
convicted. 

His case was taken to the Supreme Court where it was 
fully argued by Mr. Goulding, a leading attorney, for the 
defendant, and by me in behalf of the Commonwealth. I 



80 SOME EECOLLECTIONS 

was very much interested in the case and felt the indict- 
ment should be sustained. I spent considerable time in 
preparing my brief, citing all the cases in this country 
and in England. The case was ably argued by Mr. 
Goulding in behalf of the defendant. The court took my 
opinion of the law and held that the conviction was right. 
(See Commonwealth vs. Franklin Pierce, 165 Mass. R.) 

During that summer, 1884, Lord Coleridge, Chief 
Justice of England, visited this country, and while in 
Massachusetts, I, as attorney general, helped to entertain 
him. He was a very agreeable and entertaining gentle- 
man. I dined with him several times and became an ad- 
mirer of his. 

After he returned to England I sent him a copy of my 
printed brief, not anticipating an acknowledgement even. 
I received the following autograph letter: 

''Heath's Court 
Ottery S. Macy 
Devon 
October 17th, 1884. 
Dear Sir: 

I thank you sincerely for the copy of your argument in 
Commonwealth vs. Pierce which you have been so good to 
send to me. The argument is, if I may say so, remark- 
ably clear and able, and I hope that the doctrine of Lord 
Hale as explained by Lord Lyndhurst may be established 
with you as it is with us. 

Anything which reminds me of the kindness and gen- 
erosity which I experienced in America, is I assure you, 
at all times especially grateful to me. 

Believe me to be, Dear Mr. Attorney General, 
Your obliged and grateful servant, 

Coleridge. 

The Attorney General of Massachusetts". 



OF A LONG LIFE. 81 



I received many other letters from distinguished 
Judges, among them the following from Judge Edmund 
II. Bennett, Dean of Boston University Law School. 

"Boston, Nov. 29, 1884. 
My Dear Sir: 

I have been delighted with your brief in the Pierce 
case in Worcester, which I have just read. I have no 
doubt your view is correct. There cannot be one rule of 
criminal responsibility for ordinary persons, and another 
and lower one for physicians. If anything it should be 
higher. I am glad that you have removed an anomaly 
from our criminal jurisprudence. 

Very respectfully yours, 

Edmund H. Bennett. 
Hon. E. J. Sherman, Attorney General". 

Governor Butler asked one of his aides-de-camp, Col. 
John P. Sweeney, to accompany the Attorney General to 
N^ewburyport to meet the Lord Chief Justice as he came 
into the Commonwealth and to entertain him for the 
day, the Governor himself being out of the state. After 
luncheon at the hotel, we suggested to his Lordship a drive 
about the city and suburbs. 

When seated in the carriage, we asked, "Where shall 
we go first" ? The Chief Justice said, "Suppose we look 
at the place where we had the trouble about the tea". The 
driver was directed to take us to T Wharf. Here the Chief 
Justice took a look at the water and seemed to be just as 
well satisfied, as if told that he could not see the exact 
spot as it had been filled and built over. 

Later when Col. Sweeney and I reported to Governor 
Butler about the tea episode he laughed heartily, but did 
not "give us away" to the Chief Justice. 

Governor Butler sent to Mrs. Sherman a silver cup and 
saucer with the following note, which is self-explanatory. 



82 SOME RECOLLECTIONS 

State House, Boston. 

November 24, 1883. 
My Dear Madam: 

On this 25th return of your marriage day (may the 
future be as happy as the past) accept this little token of 
my love and esteem for yourself and husband — the ripened 
fruit of many years of kindly regard from both. The in- 
trinsic value of this silver cup and saucer is nought, yet I 
care for it as a faithful servant which during my several 
campaigns during the late war, always came to the "front" 
when "black coffee" was called. I trust it may be valued 
by you for the sake of the giver, as a remembrance, as it 
has been useful to him. 

Most truly Your Friend, 

Benjamin F. Butlee. 
Mrs. Edgar J. Sherman. 



Case of James IsTicholson. 

I appointed Harvey IS". Shepard, Esq., the assistant at- 
torney general, and Henry A. Wyman the law clerk. 

The cases in which the Commonwealth was a party or 
interested, and argued by Mr. Shepard or myself, are re- 
ported in the Massachusetts Reports, from 134 to 145^ 
inclusive. 

While serving as district attorney for a period of four- 
teen years I assisted the attorney general in trial of the 
murder or capital cases, which occurred in the Eastern 
Criminal law district. 

While attorney general, with the assistance of the dis- 
trict attorneys in the several districts, I tried in behalf of 
the Commonwealth all the capital cases. One of these 
cases tried in Suffolk was Commonwealth vs. James 
!N"icholson. 



OF A LONG LIFE. 83 



Nicholson was an ex-police officer, had married a wife 
from the north end, had a little girl two years old, and 
Mrs. Nicholson was pregnant, and owing to some trouble 
with her husband, who was out of work and drinking more 
or less of intoxicating liquor, had left him and gone to live 
with her mother. 

He went there on the morning of the murder, fired two 
shots and killed her. 

Commonwealth of Massachusetts. 

Supreme Judicial Court. Suffolk, ss. 

December 17, 1884. 

Commonwealth vs. James Nicholson. 

Charged by Indictment with the Wilful Murder of his 
wife, Ellen. 

Third day of the trial before Devens and Holmes, Justices. 

Edgar J. Sherman, Attorney General, Oliver Stevens, 
District Attorney, for the government. 

Stillman B. Allen, Owen A. Galvin, for the prisoner. 
An Abstract of the Argument of 
Edgae J. Sheeman, Attoeney Geneeal 
In behalf of the government. 

May it please your Honors, and you, Mr. Foreman, and 
gentlemen of the jury: — 

I congratulate you, gentlemen, that we are so near the 
end of this painfully interesting and important trial. 

When the newspapers, on the afternoon of April 22 
last, announced that James Nicholson had murdered his 
wife, and had made his escape, the whole community of 
the city of Boston and the people of the Commonwealth 



84 SOME KECOLLECTIONS 

received a shock. After reading the particulars of what 
then seemed a cold-blooded murder, they remembered that 
for many years the city had been spared the horror of a 
similar tragedy, and they marvelled that such a crime 
could be committed in mid-day, in broad daylight, and 
the murderer escape. 

As days and weeks passed the people became impa- 
tient. They complained of what seemed to them inactivity 
on the part of the officers of the law; they asked: "Have 
we really a police force" ? they murmured, because the 
murderer was not detected and arrested, at the inefficiency 
of the officers of the city and state. 

But while this natural impatience was manifesting it- 
self in the newspapers, the officers of the law, who cannot 
publish to the world the information they receive, as 
thereby they impart to the absconding criminal the pro- 
gress of their search, were quietly, noiselessly and zealous- 
ly prosecuting their plans for the capture of the fugitive. 

ITot until June 10th did the telegraph inform us that 
the prisoner had been arrested in Montreal. A few days 
later, he was brought back to Boston by Sergeant Symonds 
of the Boston Police force, and lodged in jail, to await 
arraignment and trial upon an indictment presented by 
the grand jury of Suffolk county, charging him with the 
wilful murder of his wife. When it was ascertained that 
Nicholson had been arrested, brought back to Boston and 
committed to jail, the excitement subsided. In the in- 
terim the murdered wife had been buried, and the 
shocking tragedy, which deprived her of life in early 
womanhood, had been partially forgotten. Our attention 
is now attracted to the living. His friends rally to his 
defence, speak of his good deeds, good character and kind- 
ly disposition. Our . sympathy begins to turn from the 
dead wife to the living, suffering and weeping husband. 



OF A LONO LIFE. 85 



This is usual and natural. We sympathize with present 
trouble and suffering. 

My friend, Mr, Allen, counsel of the prisoner, tells 
you, while making a sympathetic appeal to you in behalf 
of his client, to harden your hearts against the argument 
of the Attorney General; that he will give you "cold 
logic", without tenderness or sympathy. 

Does Brother Allen imagine himself the only person 
in the court room possessed of a heart ? 

I trust I pity the prisoner as much as counsel does. We 
all sympathize with a man in sore trouble. I cannot see 
a man like the prisoner, weeping upon the witness stand, 
as though he were beginning to realize the terrible crime 
he had committed and to feel the great peril he is in, 
without pity. IsTeither am I unmindful of your tears and 
manifest sympathy for him, nor do I complain thereat. 
Our hearts, our sympathies, are the best part of our 
natures. 

Before proceeding to a discussion of the evidence, I de- 
sire to call your attention to two statements of the counsel 
for the prisoner. 

First, he makes an appeal to you to save this prisoner 
from the gallows and from imprisonment for life, because 
he hails from the same county and state, — York County, 
Maine, — that counsel does ; he says it would be a gratifi- 
cation, and he would consider it a personal favor and 
compliment to be allowed to take the prisoner home to his 
father and mother in Maine. 

Has it come to this? Are you in a court of justice? 
Are we engaged in the solemnity of a capital trial ? Away 
with such childlike and puerile suggestions! They have 
no proper place here. The second suggestion is, that I 
shall beg, appeal and implore you to convict the prisoner. 

Gentlemen, I shall do nothing of the kind. This is an 



86 SOME KECOLLECTIONS 

important trial. I have a duty to perform, and so have 
you. If I do my duty fully and faithfully, it is of little 
personal consequence to me how you perform and dis- 
charge yours. You have more responsibility in the ver- 
dict which shall be rendered than I. You are citizens of 
Boston; your names have been given to the public, as the 
"good men and true", who have sworn that you have no 
such prejudices against capital punishment as would pre- 
vent you from rendering a true verdict, and that you will 
try the case according to the law and the evidence given 
you. You are to decide whether a man can commit a 
deliberate murder with premeditation and malice, and 
escape the consequences. You are to determine whether 
life is sacred and under the protection of law in Boston. 
I am not a resident of the city. You have more at stake 
than I have. Your verdict on the morrow will show to the 
world your appreciation of a human life, and the protec- 
tion you would furnish it. Mrs. Nicholson's life was as 
valuable to her, and as much under the protection of the 
law, on Cross street, as any life on Beacon street. 

There are three possible verdicts which may be ren- 
dered upon this indictment. Murder in the first degree, 
murder in the second degree, and not guilty by reason of 
insanity. You have no right to return a verdict of man- 
slaughter under the evidence. 

The government must prove its case beyond a reason- 
able doubt. The adjective reasonable is significant and 
important to remember. There is nothing in this life 
absolutely certain and sure. Impossibilities are not re- 
quired. We are not to prove a case beyond a possible 
doubt. We are to satisfy your reason. There is no mys- 
tery about a court of justice. You take with you into the 
jury box your common sense, your intelligence, your ex- 



OF A LONG LIFE. 87 



perience, and all the ability God has given you. You act 
there as you act outside upon important questions. 

Drunkenness and insanity have been imported into this 
cause. iSTeither have any right or place in it. The pris- 
oner was sober, not intoxicated, on the twenty-second day 
of April, when he committed this great crime. The case 
has been discussed as if it were proven that l!^icholson was 
drunk on that day. I repeat, there is not a scintilla of 
evidence from any source to prove it, as I shall show by 
and by. 

We start, then, on that morning, with a sober, rational 
and responsible being; a man who had had a quarrel with 
his wife, a separation from her on two occasions, and who 
is now living separate and apart from her on that account. 
Two persons only know the extent of that quarrel, and the 
cause of it. The lips of one are sealed by death, and the 
other, the prisoner, dare not and will not tell you. The 
jealousies and quarrels between husbands and wives are 
not proclaimed upon the housetops and are generally 
known only to the parties. It appears, however, that the 
prisoner had aided in the support of his bastard child, 
born of another woman, prior to his marriage to Mrs. 
Nicholson, and that she knew the fact, and also knew that 
the mother of that child continued to reside in the vicinity 
of her husband's residence. If Mrs. Nicholson was not 
jealous, under such circumstances, she was a remarkable 
woman. 

Mrs. Nicholson persisted in living at this lodging-house, 
"this cheap lodging-house", where, as counsel says, "th^y 
took lodgers at fifteen cents a head", — against her hus- 
band's wishes and protest. She had also, against his will, 
and while he was away, taken all his household goods, of 
every kind and description, from his residence and moved 
them to and placed them in this same "cheap lodging- 



88 SOME KECOLLECTIONS 

house" ! The quarrel between them was greatly aggra- 
vated on this account. He had not seen her for five weeks, 
except once, when he was sent for to come and see the sick 
baby. His remarks then about keeping the baby in "such 
a place"! showed still his feeling. 

But, gentlemen, I cannot show you the extent of thi& 
quarrel, his jealousy of her or hers of him, because the 
dead cannot speak; I do, however, establish beyond con- 
troversy the fact that there was a quarrel, and that it 
commenced in January, existed afterwards, deepening 
and widening, during all which time the prisoner had 
pondered over it, brooded over it, becoming moody, and 
seeking relief in the old way, by the use of the cup that in- 
toxicates. By reading now the history of his life since 
January, you see him gradually drifting into the condition 
of jealousy and exasperation in which he contemplates the 
deed ; and then he uses liquor, as it is used by almost all 
criminals, to give courage and to steady his nerves. 

He had been drinking heavily for several days, and 
was more or less intoxicated on several occasions. He is 
now prepared for the deed of blood! He walks calmly to 
the house, plays with the baby until the wife comes in. 

"Hallo, Jim, you are quite a stranger", says the wife. 
He talks again about going to New York. Finding him 
calm and sober, she takes their baby and invites him into 
the other room. She knew him better than anybody else. 
Do you, gentlemen, believe for a moment that she would 
have invited him into that front room alone, unless he 
was perfectly sober, or if he was then insane, having a fit 
of delirium tremens ? 

They have been in the other room but a short time, a 
few minutes, when loud words are heard. He is heard to 
say, "Take that"! and the discharge of a pistol follows. 
The witnesses rush in ; the prisoner is standing in the mid- 



OF A LONG LIFE. 89 



die of the room, pistol in hand ; the wife is lying back in 
the rocking chair; the dress sleeve on her left arm is on 
fire from the powder of the pistol. She exclaims, "He has 
killed me at last" ! — the ball had hit her left arm and 
glanced into her body. Her brother, putting out the fire 
on her sleeve says, "No, you are not dead; he has not 
killed you". There is more talk; the brother tries to re- 
assure her. According to the evidence of the boy, Con- 
way, who ran down stairs and to Salem street and gave 
the alarm, a minute and a half elapsed between the first 
and second shot. Nicholson says, "If I haven't killed you, 
I will" ! and then puts a bullet directly through her heart. 
He waits to see her die, then exclaims, "I am a murderer, 
and I meant it" ! passes slowly down stairs, lights his 
cigar, calmly walks down the street, and makes his escape. 
If that is not murder with deliberately premeditated mal- 
ice aforethought, I do not know what is. 

Gentlemen of the jury, the language of Mrs. Nicholson 
throws a flood of light on the case; it is like her dying 
declaration. He was sober ; she did not suspect him. She 
must have feared him. He says, "Take that" ! and fires. 
She who had been threatened, frightened, and who had 
feared death at his hands, while she believes she is dying, 
exclaims, "He has killed me at last"! There is a whole 
volume of secret history revealed in these six words. They 
lift the curtain and enable us to observe his deliberation 
and premeditation. As we hear them, we see the jealousy, 
madness and malice which cause him to murder. They are 
the key which unlocks the door to his motive and deliber- 
ate purpose to kill. 

After those significant words are uttered by her and re- 
veal to him her previous fear, dread and expectation of 
death at his hands, his exclamation and acts confirm hers, 
and give clear interpretation of his purpose and motive 



90 SOME BECOLLECTIONS 

in firing the first shot. "If I have not killed you, I will". 
'Now he waits until death receives his victim, and then he 
interprets her declaration and all his previous acts with 
language as impressive and vitally conclusive as though 
written in letters of fire upon the heavens above him. "I 
am a murderer, and I meant it" ! 

Then, gentlemen, as if to emphasize it all, and to con- 
vince the most skeptical of his determined and deliberate 
purpose at all hazard to murder his wife, while in the 
possession of all his faculties, he moves moderately down 
stairs, stops, strikes a match, lights his cigar, walks calm- 
ly along the street, and makes his escape. 

Most men under the excitement of shooting under such 
circumstances, would shoot badly ; but Nicholson, who had 
planned it, prepared himself and his nerves for it; with 
a steadiness born only of premeditation and deliberate 
calmness, aims accurately, and pierces the heart of his in- 
tended victim. 

Now how does he act? Like an insane man, like a 
drunken man, or like a man who has planned and com- 
mitted a deliberate murder. 

Within twenty minutes the whole police force of Bos- 
ton, over eight hundred men, is searching and looking for 
Nicholson. An accurate description is sent out, and soon 
all the ofiicers in the Commonwealth, and in New Eng- 
land, are on the watch for him. Notwithstanding this, 
he is so bright and capable, and his plans are so well laid, 
that he is enabled to elude all the vigilance and skill of 
the best officers and detectives, and make his escape to 
Canada. This fact alone laughs at this defence of in- 
sanity ! The fact that he could commit a murder at noon- 
time and secrete himself, or escape within twenty-four 
hours from the city of Boston, eluding the great vigilance 



OF A LONG LIFE. 91 



and thorough search of the police, causes us to smile at 
this defence of drunkenness. 

What is the answer of the prisoner to this state of facts ? 

1. Pity and sympathy for him. 

2. Abuse of the government witnesses. 

3. Drunkenness. 

4. Insanity. 

There is no element of the golden rule in this pathetic 
appeal for sympathy. Did Nicholson show mercy to her 
whom he had promised to love and cherish, and whom he 
was under every obligation of manhood and honor to pro- 
tect and defend ? 

While she was suffering from the cruel wound of a bul- 
let in the body, and in terrible agony from the burning of 
her arm, and her dying, pitiful voice uttered, "He has 
hilled me at last" ! — did he show pity then? On the con- 
trary, no word of sympathy and no act of tenderness came 
from him. But with cold, harsh and vindictive words, he 
exclaimed, '"If I have not killed you, I will" ! 

As her body falls heavily upon the floor, and as her 
little child falls also, crying with fright and clinging to 
the body of the dead mother, — a scene which would seem 
to melt a heart of stone, — did he manifest sympathy then ? 
N^o. Coldly waiting until death takes his victim, he ex- 
claims, with the satisfaction of malicious hatred, "I am 
a murderer, and I meant it" ! 

Do tears flow from his eyes as he leaves for the last 
time the house where he had wooed and won her ? I^o, he 
takes a smoke, in satisfaction at the accomplishment of 
his purpose. 

And this is not all, gentlemen. Six weeks afterwards, 
having had time for reflection and repentance, upon meet- 
ing that faithful officer. Sergeant Symonds, in Montreal, 
Nicholson greets him with, "I killed her; I am not dead 



92 SOME RECOLLECTIONS 

yet, and I am not afraid to die". ISTo regrets then, and 
no sympathy for the dead. And, gentlemen although that 
cruel murder was committed nearly eight months ago and 
you have the declarations of the prisoner, at the time, 
immediately after, in Montreal in June, and on the wit- 
ness stand, yet I call your attention to the fact that, dur- 
ing all this time, his lips never have uttered a word of 
sympathy for that poor wife, of regret for the murder, 
nor remorse or repentance for the great crime! 

Can anything be more conclusive to show a premed- 
itated purpose and plan, the deliberate execution of the 
same, and entire and malicious satisfaction as its accom- 
plishment ? 

And, Mr. Foreman and Gentlemen of the Jury, with 
this evidence before you, counsel in his behalf pleads 
sympathetically with you, to save such a cruel father and 
cold-blooded murderer, so that he may be spared to bring 
up, train and educate his motherless child. Well, gentle- 
men, I have heard the story of a young man, who 
murdered his father and mother to obtain their property, 
and then pleaded for mercy and leniency upon the ground 
that he was a pooi' orphan. That story has been told in 
jest. Counsel makes his appeal apparently in all serious- 
ness. 

I desire to consider briefly the witnesses for the Com- 
monwealth. We were in duty bound to produce every 
witnesss who was present when the murder was com- 
mitted. If we had left one, you would have heard loud 
calls for such absent one. 

When, under such circumstances, we call witnesses, we 
expect you to hear them, and credit them so far as they 
appear to be truthful and worthy of credit. We should 
not be inclined to give every witness a certificate of good 
moral character. We do not select the persons who hap- 



OF A LONG LIFE. 93 



pen to be witnesses to crime. If we did we should select 
the best. The first witness called is Edward AUman, upon 
whom counsel makes a severe attack. Why? Because 
Allman happens to be an important witness against the 
prisoner. Let us be just to him whom they called "Uncle 
Allman". Is it anything against an honest old Irishman, 
who is poor in health and purse, that he boards at a lodg- 
ing house on Cross street, at fifteen cents a night, instead 
of at Young's or Parker's ? Has he any motive to tell an 
untruth ? He was there, and saw and heard what he says 
he did ; and, in fact, is corroborated in every thing he says 
except one. After IsTicholson committed the murder, he 
said, "I am a murderer". Allman heard it ; so did George 
McLaughlin; and Allman says Nicholson added, "and I 
meant it". He is the only witness who heard that. George 
has forgotten it, or never heard it. That often happens. 
'No two men seeing a fight in the street will describe it 
precisely alike. But you know that IlTicholson was a mur- 
derer, and you also know perfectly well that he intended 
and meant to murder, and whether or not he added, "I 
meant it", you may think of little consequence. I think, 
however, you will give full credit to the testimony of Ed- 
ward Allman, whose honest face, clear and disinterested 
manner will convince you of his accuracy and truthfulness. 

George McLaughlin, the brother of Mrs. Nicholson, 
has also been handled very roughly by the other side. 

George was corroborated by the other witnesses. But 
he was not a willing nor a swift witness for the Common- 
wealth. On the contrary, he was disposed to help the 
prisoner all he could. He had been appealed to by the 
father of Nicholson not to "go hard" against the prisoner, 
and he has been constantly treated to liquor by the friends 
of the prisoner, at the North End, since his arrest ; and I 
agree with counsel, that he had been drinking intoxicating 



94 SOME EECOLLECTIONS 

liquor prior to coming on to the witness stand. I would 
not give George McLaughlin a certificate of good charac- 
ter ; yet he is obliged against his will, to tell what he 
knows about the case. He does it reluctantly, but he tells 
it, and he is corroborated. 

We come to the one bright spot in this case, the testi- 
mony of little, sweet-faced, innocent Annie Quigley, the 
girl of seventeen. ^Notwithstanding her humble birth, 
her poverty, and her unfavorable surroundings for a life 
of chastity, yet she comes into this court with the inno- 
cence of childhood, with a sweet, intelligent countenance, 
and she carries conviction that every word she utters is the 
absolute truth. What has saved that girl, gentlemen, 
whom you believe to be as pure as the driven snow? Jus- 
tice to whom justice is due. Say what you may, I believe 
the church is entitled to great credit in that regard. And 
after Annie has told you the story of that terrible day, — 
a scene which was photographed upon her memory, and 
its imprint will remain there forever, — you are satisfied ; 
you are convinced. You no longer have a reasonable 
doubt. She was frightened and ran away, and did not 
hear and see everything; but she heard enough, — enough 
to satisfy and convince the most doubting. 

But you have, although you do not need him, that 
bright boy, Conway. You believe him; he gives the time 
between the shots. On hearing the first he ran down stairs, 
gave the alarm, hurried a few feet to Salem street, when 
he heard the second shot, — about a minute and a half be- 
tween them, — and while Conway was looking for a police- 
man, he saw the prisoner calmly walk away, smoking his 
cigar. 

But why do I dwell upon this evidence? There is no 
dispute about or contradiction of it. The prisoner, who 



OF A LONG LIFE. 95 



has been a witness, does not deny it. It stands undis- 
puted, and is, in fact, admitted. 

The government has then proven, beyond a reasonable 
doubt, that the prisoner, with deliberately premeditated 
malice aforethought, murdered Ellen Nicholson. 

What is the defence ? Insanity ; drunkenness ! 

Although there is evidence that the prisoner had been 
drinking for three months prior to April 22, and exces- 
sively for several days before the homicide, yet I say, and 
call upon you to listen while I review the evidence, that 
he was not intoxicated on that day. On the contrary, the 
evidence conclusively shows that he was sober. Drunken- 
ness, as has been said, does not excuse crime. Where intent 
is essential to crime, and the crime cannot be committed 
without proof of such intent, like assaults with intent to 
rob or murder, the question of drunkenness may have an 
important bearing on the issue. 

So, in determining the degrees of murder, under our 
statute, the question of the intoxication of the murderer 
at the time, — the condition of his mind and will, — may 
be significant and decisive. 

There is a vast difference, however, between a man 
who takes a single glass of liquor and one who is beastly 
intoxicated. A great many men in the Commonwealth, 
perhaps one-third of our people, use intoxicating liquors 
moderately; some drink several times in the course of the 
day, but seldom, if ever, become intoxicated. Others be- 
come beastly intoxicated, staggering drunk, so that tbey 
can neither walk nor talk straight. Although there is evi- 
dence that he was under the influence of intoxicants on 
Friday, Saturday and Sunday, and perhaps on Monday, 
yet on Tuesday, the day of the murder he was sober. Up 
to the hour of the murder he had taken four drinks only. 
Two whisky cocktails and two glasses of beer. The cock- 



96 SOME RECOLLECTIONS 

tails and one glass of beer had been taken in the forenoon, 
the other glass of beer was furnished at the house by 
George McLaughlin. You know something of the effect 
of liquor upon men by observation. A man in the habit 
of using liquor every day, like the prisoner, will be 
steadied by a few glasses, while the man unaccustomed 
to its use may be somewhat disturbed by the same or a 
smaller quantity. Common observation detects drunken- 
ness at a glance. We all know when a man is guilty of the 
crime of drunkenness. Evidence of it is constantly pro- 
duced in courts of justice, and police officers testify that 
the man exhibited it by staggering, or by talking wildly 
and incoherently, or by screaming, or by lying in the gut- 
ter unable to move or talk, or by being in the condition 
of a crazy man, — "crazy drunk", as it is called. I^ow, 
then, there is no evidence that ISTicholson was intoxicated 
on that day; but, on the contrary, all the evidence, his 
appearance, looks and acts, show him to be sober and in 
the full possession of all his senses and faculties. He went 
to his work as usual, as foreman of the shop, and worked 
steadily until towards noon. One man from that shop has 
been called as a witness in the prisoner's behalf; he does 
not say that JSTicholson was intoxicated. If he had been, 
every man in the shop would have been here and so testi- 
fied. The man who sold him the liquor that forenoon was 
a witness for the prisoner, and he does not pretend that 
Nicholson was drunk. Everybody who saw him before, 
at the time, and after the murder, describe him as sober 
and calm. But, gentlemen, the fact that he was able to 
escape, when eight hundred policemen were immediately 
after him shows him in the possession of all his faculties. 
A drunken man would have staggered into the hands of the 
police, l^icholson is not without friends, who have shown 
a willingness to help him when they could by their evi- 



OF A LONG LIFE. 97 



dence. Many of them must have seen him that day ; they 
raised $100 to enable him to escape, but not one comes to 
swear that he was intoxicated. 

This defence failing, we come to consider the defence 
of insanity. That is now the defence in all cases where 
the crime is clearly proven and all other defences fail; 
insanity; transitory mania; transitory frenzy; delirium 
tremens; mania-a-potu, and rum insanity. The physicians 
who think and write on this subject are apt to become par- 
tially insane themselves. Fortunately, this kind and 
claim of insanity has been defined, and they say it is 
delirium tremens. We know, gentlemen, the common 
man knows, something of delirium tremens. If you have 
ever seen a man suffering from that disease, you will 
never forget it. If this man had delirium tremens for a 
week, from the Friday before to the Friday after the hom- 
icide, then I admit, gentlemen, your verdict should be not 
guilty by reason of insanity. But, gentlemen, I deny that 
he had any such disease; it is all a sham and pretence. 
N^obody saw him have delirium tremens. The persons 
who saw him on five or six occasions intoxicated, do not 
even claim he was suffering from that disease. The men 
who sold him liquor are acquainted with the signs of 
delirium tremens, but not a witness swears he had them. 
Think, gentlemen, of a man as foreman of a shop, direct- 
ing its business, and not a person therein even dreaming 
that he was working under an insane man! The law pre- 
sumes every man sane. He talks and acts like a sane man ; 
and, after committing the murder, he escapes like a sane 
man. But my friend (Mr. Allen) says, the physicians 
find him to be insane — suffering from delirium tremens. 
The experts on insanity, the doctors, find no such thing. 
They were asked hypothetical questions. They were 
asked, if !N'icholson imagined certain things which were 



98 SOME RECOLLECTIONS 

not real, and did not exist, on occasions when he was 
drunk, if that would not be evidence that he had halluci- 
nations. Of course they answered *'yes". I asked if those 
acts were equally consistent with drunkenness, and they 
answered "yes". But there is no evidence that the things 
he puts into the question were imaginary. On the con- 
trary, some of them are imaginary, and only exist in the 
mind of Mr. Allen, as I can show you. The first act to 
prove delirium tremens, is from the evidence of the fire- 
man, John I. Quigley; and my brother Allen founded an 
argument to you upon the ground that the woman who 
claimed to be a mind reader, was an imaginary being, 
having in fact no existence. It is fortunate that we have 
a full report of this evidence, for I propose to prove to 
you from it that the "mind reader", so called, did exist; 
that a woman who made professions in that direction act- 
ually existed, and was out attending church when the 
prisoner and Mr. Quigley called. I read from the testi- 
mony of Quigley, on page 21 : — 

Quigley. "Says I (to Nicholson) 'Come along; what's 
the use of hangin' round like this ? ' says he, 'I will tell 
you what I will do. Come with me and see a mind reader, 
and I will go home with you'. Says I, 'All right', and I 
coaxed him to come home. I started then, with a friend 
of mine, with Mr. Nicholson, where he said he was going, 
to see the mind reader. I didn't care where it was, as long 
as I got him away, so he would be all right, and get him 
towards home. He got down to Mrs. Grimes' house on 
Salem street, a little below Parmenter, and this friend of 
mine and Mr. Nicholson and myself went in there, in the 
front room ; and when he got in the front room there, he 
asked some strange lady, I don't think he was very well 
acquainted with her at the time, where a certain woman 
was, — a certain mind reader, — and called her by name. 



OF A LONG LIFE. 99 



She says, 'She has gone out to church'. That was all there 
was to it". 

So you see, gentlemen, my brother Allen imagines 
something, and bases an argument upon a state of facts 
which does not exist. 

Take the next case, where, while Nicholson was par- 
tially intoxicated, he fires his pistol, pointing to the floor 
in the saloon ; also, on another occasion, he fires in the air. 
Counsel assumes that, in each case, he was firing at some 
imaginary object, like rats or bats. On the contrary, 
there is no evidence of that; but the witness, Mr. Wills, 
who describes it, says he thought nothing strange of it, — 
he considered it only as a freak of a drunken man. There 
is also evidence from Quigley, that Nicholson, on the same 
evening when they were in search of the mind reader, 
went upstairs and discharged his revolver; that when 
called to an account for it, he excused himself and said he 
was firing at a cat. That story may have been true. 
Nicholson was partially intoxicated, and would it be sur- 
prising that under such circumstances he gave a false ex- 
cuse? 

Then we have the astonishing circumstance of a man 
going to bed badly intoxicated, and in the morning he 
thinks he heard noises in the next room, as if people were 
there, when in fact they were not. What a remarkable 
circumstance, that a drunken man hears or sees double ! 

Then there is the testimony of the prisoner on this sub- 
ject of insanity ! Formerly, a party who had any interest 
in a civil case, even, could not be allowed to give evidence 
in a court of justice. Later, however, the legislature re- 
laxed the rule, and now allows all parties to testify, even a 
prisoner in a capital case; but, at the same time, a jury 
is to remember the great inducement and the strong motive 
he has to swear falsely. It is well illustrated in this case. 



100 SOME EECOLLECTIONS 

Think of it, gentlemen. The prisoner swears that he did 
not abscond from the Commonwealth; that he does not 
know why he went away; that upon arriving at Lowell 
and seeing his name published in the newspaper as a mur- 
derer, he did not examine the article nor read it; that he 
had no curiosity to see what was said about him or the 
murder; that at White River Junction, where he stopped 
at the hotel over night, he does not know under what name 
he registered, or whether or not he gave a false name; 
that he does not know why he gave the name of Murphy 
in Montreal, instead of Nicholson; and that he does not 
know why he was remaining in Montreal when arrested. 
I am not going to call hard names, nor say an unkind 
thing concerning this evidence of the prisoner. But you 
know it is not true, and cannot possibly be true ; and that 
the prisoner knows it is not true. 

And then he gives you the star-in-the-forehead, imagi- 
nary-men-on-the-ground-in-the- woods story ! 

One is as reasonable and probable as the other. Does 
he give you credit for intelligence, when he gives you such 
stuff? And still, in order to give this insanity theory a 
moment's respectful reflection, and to have anything to 
base the physicians' evidence upon, you must believe his 
testimony. 

When you find that he ran away from this state, after 
committing the murder; that he exhibited great ability 
and remarkable adroitness in making that escape; that he 
absconded to escape the consequences of the murder; that 
he gave false names and practised deception with the same 
end in view; then you have determined that there is too 
much method in his madness, and that you cannot and do 
not, on your consciences and upon your oaths, believe him. 
Then all this testimony, like a rope of sand, falls, and the 
evidence of the physicians, based upon it, falls with it. 



OF A LONG LIFE. 101 



'No, gentlemen, in all seriousness I say again, there Is 
no foundation for the defence of drunkenness, and the 
plea of rum and insanity has no right or place in this case. 
It has been forced and imported into it, and because of the 
importance of the cause you will give it fair consideration. 
When this has been done, your full duty towards it is per- 
formed, and you will then dismiss it from your minds. 

There is one other matter to which I desire to direct 
your attention, which I regard as important on the ques- 
tion of motive, malice, premeditation and determination^ 
as well as showing the prisoner's cunning, adroitness, abil- 
ity and firmness of purpose; and that is, his conduct on 
the witness stand. He was compelled to admit that he re- 
ceived, while in Montreal, from friends here, one hundred 
dollars. I asked him from whom he received it. He de- 
clined to answer. After coaxing him for some time, he 
still refusing, the court informed him that it was a proper 
question, it was his duty to, and he must answer it. 
Although upon trial for his life, he calmly and with stub- 
born dignity defied the authority of the court and power 
of the law, and absolutely refused to answer. Does that 
not show the character of the man, who, when he had deter- 
mined to murder his wife, would carry it out; and does 
not this exhibition on the witness stand confirm all the 
evidence of the murder; that on account of a quarrel, in 
January, between himself and wife, the cause and extent 
of which he does not disclose, they separated; that the 
quarrel increased in violence and fury, until he decided to 
murder her; that, after taking some days to bring his 
courage and nerves to the proper condition, on the twenty- 
second day of April, with the same coolness and self- 
possession he manifested in defying the power of the , 
court, he carries out his purpose, fully executes his prev- 
ious plan, and makes his escape? 



102 SOME KECOLLECTIONS 

Why did he refuse to answer ? I told him I wanted the 
question answered in order to test his truthfulness. He 
knew perfectly well the moment he answered that ques- 
tion we should know who the people of the Korth End 
were who harbored him immediately after the murder, 
and that thereby we should be enabled to trace him every 
step from the murder to Montreal, and explode that star- 
in-the-forehead and wandering-in-the-woods story. This 
was the only reason he refused to answer, and not for the 
false one given. 

You are told, gentlemen, that we have shown no motive 
for this crime. If by that is meant that we have shown no 
adequate motive for the great crime of wilful murder, I 
admit it. It is impossible to have or find an adequate 
motive for crime, and especially for a crime of this mag- 
nitude. If, on the other hand, it is claimed that we have 
shown no ill feeling, hatred nor quarrel, between Nichol- 
son and his wife, then I deny it, and appeal to your recol- 
lection of the evidence, as I have before called your 
attention to it. But, gentlemen, there is no requirement 
or burden on the government to prove or show motive in 
this or any criminal case, and the court will so instruct 
you. Evidence of motive to commit crime is important 
when there is serious doubt whether the accused is the 
person who committed it. But when there is no doubt or 
question of the identity of the person charged with the 
commission of the crime, as in this case, then the question 
of motive, or the extent of it, becomes unimportant. 

There are many things I might say, if I attempted to 
follow the counsel for the prisoner in his argument of 
three hours and a half; but I shall not. I think some- 
times it should be assumed that jurors have eyes and ears ; 
that it should be presumed that they know some things; 
that it should be taken for granted that you desire to serve 



OF A LONG LIFE. 103 



your country faithfully and that your honest purpose is to 
arrive at a just result, a true verdict. 

You have been reminded many times of the conse- 
quences of your verdict, if it shall be what counsel fears 
it may be. He has led you along with that silent proces- 
sion in the corridors of the prison many times. 

Gentlemen, in this great trial, the judges on the bench, 
the jury in the box, the counsel for the defence or ;for the 
government, have nothing to do with consequences. We 
are one and all to keep sacred our oaths, and discharge and 
perform our duty fearlessly, faithfully, honestly. 

You are simply to declare the truth as found by you; 
to decide an issue. You are to determine a pure and 
simple question of fact; and you will do it and let conse- 
quences take care of themselves. You are not the pardon- 
ing power; that is invested, under the Constitution, in 
another department of government. You are standing on 
the high plane of responsibility between the public and the 
prisoner. All eyes are turned towards you. You have 
been selected in the solemn mode provided by law for 
capital trials. 

You have sworn that you have no such prejudice against 
capital punishment as would prevent you from returning 
a verdict of guilty in the first degree, if clearly proven. 

If, while you are considering the evidence, tears of 
sympathy for the prisoner blind your eyes and you hesi- 
tate on the threshold of duty, listen to the small voice of 
that secret monitor within, as you hear the admonition, 
"Remember your oath", and life will be made more safe 
and better protected, courts of justice will be more re- 
spected, law will be vindicated; and, what is better still, 
you will have rendered a correct and true verdict and 
satisfied your own consciences, and thereby will be entitled 
to receive — having faithfully and honestly performed the 



104 SOME EECOLLECTIONS 

highest and most sacred public duty of a lifetime — the 
plaudit, "Well done, good and faithful servants" ! 



[Afterwards Judge Devens charged the jury. The next 
day they returned a verdict of guilty of murder in the first 
degree. December 20th, the prisoner was sentenced to be 
executed, March 27, 1885.] 

On the first ballot the jury voted 11 to 1 for the con- 
viction of murder in the first degree. Finally they voted 
unanimously for that verdict. When it was rendered in 
court, Mr. Allen fainted. 

Subsequently an application was made to the governor 
and council to commute the sentence to imprisonment for 
life in the state prison, which they finally did. After- 
wards, when the child who fell from her mother's lap, at 
the time of the murder, became a grown woman of twenty 
odd years of age, an application was made by her to the 
governor and council for the pardon of James Nicholson, 
her father, and the same was granted December 22, 1904, 
and father and daughter are now living in the state of 
Maine. 



CHAPTER VII. 



ATTOEl^EY GENERALSHIP,— Cow^intted 



Case of Heney K. Goodwin. 

The following trial commenced December 28, 1885, 
and was concluded January 5, 1886. The trial attracted 
considerable interest as General Butler appeared for the 
prisoner. It was the last criminal case which the general 
ever tried. The defence was insanity. 

Commonwealth of Massachusetts. 

Essex, ss. Supreme Judicial Court. 

Commonwealth vs. Henry K. Goodwin, 

Charged by Indictment with the Wilful Murder of Albert 

D. Swan. 

Eighth Day of the trial before Charles Allen and William 
S. Gardner, Justices. 

Edgar J. Sherman, Attorney General, Henry F. Hurl- 
burt. District Attorney, for the government. 

Benjamin F. Butler, John P. Sweeney, for the prisoner. 

Extract fkom the Argument of the Attorney 
General 

In behalf of the government. 



106 some eecollections 

Closing Akgument by the Attorney Geneeal. 

May it please Your Honors, and you, Mr. Foreman, and 
gentlemen of the jury: 

On the twenty-seventh day of August last, Albert D. 
Swan, who had lived in Lawrence from infancy, a man 
whom the defence admit was the soul of honor, while 
engaged in his own office, attending to his own business, 
without the opportunity to give to his wife the kiss of 
good-bye or a parting blessing to his little boy, was assassi- 
nated I 

When a man was found with courage enough to break 
the terrible news to his wife, which crushed her to the 
earth, where do we find the prisoner ? We find him sane 
enough to know where a man who commits such a crime 
belongs; sane enough to know the consequences, and to be 
responsible for his acts. We find him going towards the 
police station, giving the deadly weapons to his uncle, and 
saying to his cousin, "I have killed the son of a bitch". 
We find him surrendering himself to the police and telling 
the officers of the law that Swan had wronged him, cheated 
him; that he had made up his mind a year ago and told 
Swan so, that he would have his heart's blood, unless a 
settlement was made ; that he had now satisfied his revenge, 
carried out his threat, that he was satisfied and prepared 
to take the consequence. Did he not then know, gentlemen, 
and had he not intelligence enough to know the consequence 
of his crime ? There was no thought of insanity then. 

It is well to look at the prisoner and his case then, be- 
fore counsel had been called into the case at all. It was 
as well known in Lawrence then, that the prisoner and 
Swan were enemies, as it is that General Butler and I are 
friends. It went on, so swears the uncle, for two or three 
weeks, and everybody believed that the prisoner killed 



OF A LONG LIFE. 107 



Swan because they were enemies and because Swan had 
wronged and cheated him, and the only suggestion on be- 
half of the prisoner's friends was that the great provocation 
should in some measure mitigate the crime. There was no 
talk or thought of insanity then. There was no attempt 
then to show that these men were friends and that it was 
a delusion on the part of the prisoner to suppose that Swan 
was his enemy and had wronged him. This plain man, 
the uncle Joseph Stowell, who was not suffering under a 
delusion, this man, with a level head and hard sense, for 
three weeks swears he believed as did the prisoner, that 
Swan had wronged and cheated him, and that Goodwin 
killed him to satisfy his revenge. 

But all is changed. Desperate cases require desperate 
remedies. How could the prisoner be saved from the con- 
sequences of his great crime? A cold-blooded murder 
had been committed in broad daylight, in the quiet manu- 
facturing city of Lawrence ; what can be done ; up to that 
time no excuse had been offered. For three weeks no man 
suggests delusion, or insanity. 

The great criminal lawyer, the man believed to have 
defended more criminals than any other lawyer in the 
world, a man of great ability as a lawyer and an actor, 
who understands the drama of the court room, how to 
place the footlights and the scenery, how to appeal to the 
sympathy and the prejudice of a jury, a man who knows 
how, while arguing a question of law to the Court to have 
an eye on the jury ; a man with such great ability, that if 
he should attack the good old Commonwealth of Massachu- 
setts he would make her appear as the meanest state of the 
Union, if he should attack one of her public and 
charitable institutions he would make it appear worse than 
Andersonville ; a man believed to possess the power to 
make a jury believe that white is black and black white; 



108 SOME KECOLLECTIONS 

General Butler was sought and retained to defend the 
case. And for the first time we hear these magic words 
delusion, insanity! Then comes this now too common 
defence of insanity. This defence which is invoked when 
there is no other. This ^ew York invention, this momen- 
tary insanity, this transitory frenzy, emotional insanity, 
this presto change, now you see it and now you don't 
insanity ; this kind of insanity which exists during the act 
of killing, never existed before, and is never expected to 
appear again! I confess, gentlemen, I have no respect 
for or sympathy with such claim of insanity as an excuse 

for crime. 

******** 

As soon as the trial commences there is an attempt to 
prejudice you against the Commonwealth and its officers. 
For the first two or three days it must have appeared 
doubtful to you whether the prisoner or the Attorney Gen- 
eral was on trial. It would have been supposed that my 
duties were hard enough, without an attempt to put me 
in the dock. What would you have thought of me, gentle- 
men, living as I do in the city where this terrible crime 
was committed, if I had not thoroughly prepared and tried 
this case. 

The first attack upon me was because I tried to get up- 
on the jury such men as the law requires, "persons of good 
moral character, of sound judgment, and free from legal 
exceptions", and men with brains. I said to the Court in 
your hearing that, if it was claimed or suggested than any 
agent of the Commonwealth had done or said an improper 
thing, I courted the most thorough investigation. But no, 
there is no charge of that kind. General Butler did me the 
honor to pay me a compliment ; to say, he believed I would 
act according to my conscientious convictions of duty. I 
thank him. Every act of the criminal lawyer, the actor. 



OF A LONG LIFE. 109 



is brought into full play. You have seen enough during 
this trial, to know that this great audience is not over- 
crowding this court house, is not here simply to hear the 
Goodwin case. It is here to see General Butler, the great 
criminal lawyer, and actor as well, to see what wonderful 
power and control he has over men. Sympathy, gentle- 
men, is more potent with ordinary men than reason, and 
hence everything is done here that can be, to enlist your 
sympathy. It has been so arranged, accidently or de- 
signedly, you are to judge which, that you could not "look 
upon the prisoner", without first observing the anxious 
care-worn countenance of his wife, that you could not go 
out of or come into the court house without beholding her 
anxious and pleading face. I am not going to complain of 
it, gentlemen. I am sorry for her, I pity her. She and 
the Stowells, the uncles, shed tears upon the witness stand 
and their tears have flowed profusely since while in 
court. I cannot explain. Undoubtedly they feel all 
they appear to; but, gentlemen, you cannot reason well 
with your eyes filled with tears ; and there has been an 
attempt to keep them full all the time. 

Prejudice comes next to sympathy; it also is more 
powerful than reason, or rather reason cannot assert itself 
where prejudice is enthroned. Your minds are to be kept 
full of prejudice. The sheriff and his officers are attacked, 
they with the Attorney General are wrongfully conspiring 
against the life of this "poor prisoner" ! Why ? Because 
it is alleged that these officers reported certain statements 
of the prisoner to me. Then comes another complaint. I 
committed, as General Butler would have you believe, the 
unpardonable sin, by asking three physicians, experts on 
insanity, to visit the prisoner and ascertain his mental 
condition, whether he was an insane man or not. Gentle- 
men, I had a perfect right to prove anything the prisoner 



110 SOME BECOLLECTIONS 

ever said, for a year prior to the homicide, to the close of 
the evidence, not only as bearing upon the question of his 
sanity, but declarations of a prisoner are always compe- 
tent evidence to be used against him. I would have had 
that right, but I call it to your attention, that I have not 
exercised it. If I had allowed this defence of insanity 
to be used for the purpose of misleading you, with the in- 
tent on the part of the defence to induce you to render a 
false verdict, and had not called competent professional 
gentlemen, who had made the subject a life study, with 
great practical experience in treating the insane, would 
you not say I had failed to discharge the high trust con- 
ferred upon me by the people of the Commonwealth. You 
must be fully satisfied of the purpose and intent of these 
numerous attacks upon me; that they are suggested and 
made in order to create a suspicion, a prejudice in your 
minds, so that you will not listen to the argument which 
I address to your intelligence, conscience and reason. Fi- 
nally, when General Butler had his say on these matters, 
when he had made all the insinuations against me he de- 
sired to make for your benefit, although entirely friendly 
to me all the time, I concluded that it was time you should 
know the exact facts ; God knows I have nothing to keep 
back in this case. I want, if I can, to help you, gentlemen, 
discharge the most painful and important duty of your 
life time. And what did I do? In this court room, I 
went to the dock and said kindly to the prisoner, "Henry, 
I would like to have three doctors, whom I have here, talk 
with you in the court room". He expressed a preference 
to have them examine him in jail in the evening. He 
could have been examined here, but I yielded to him and 
they saw him in jail. General Butler wanted to make 
it appear, insinuated that I had deceived this poor man 
as to whom the experts really were, and I was obliged to 



OF A LONG LIFE. Ill 



call Mr. Cronin, the deputy sheriff, who sits beside the 
prisoner, to show that there was no deception, and that he 
was treated with every consideration of kindness and hu- 
manity; although General Butler knew, and I felt you 
knew enough of me, gentlemen, I certainly hope you do, 
to believe I would in no way wrong the prisoner. 

It was believed that one of your panel had been a suf- 
ferer in Andersonville, and General Butler, as I said 
before, knew where and how to touch a juryman's heart, 
and how to reach his prejudices; and we have had Ander- 
sonville, the horrors of that terrible place, the sufferings 
of the prisoner while there and afterwards, before you 
all the time. Gentlemen, if there is a man upon your 
panel who was a soldier and fought to save the nation 
from its enemies, who was a patriot and his sense of duty 
was such that he was willing to give up his own life to 
preserve our republican government, and then suffered 
the agonies and horrors of Andersonville, it is to him I 
make my appeal; he is the citizen I can appeal to con- 
fidently; he is possessed of the highest qualities for citi- 
zenship ; I can and do expect from him the same devotion 
to duty, the same high consideration of citizenship in the 
jury box where our liberties are preserved and the govern- 
ment in its integrity is maintained, as was exhibited on 
the field of battle and in prison. A man who stood like 
a wall between the government and its enemies will stand 
equally strong and faithful in the jury box. 'No matter 
that his eyes overflow with tears; you will find after the 
tears are wiped away his strong sense of duty and justice 
remain. I will trust a true soldier, a brother comrade of 
both of us. I am not afraid of a soldier ; they are of our 
best citizens; I am willing he should weep with the wife 
and these friends of the prisoner, and I will never com- 



112 SOME KECOLLECTIONS 

plain of that, for back of tears I know there is a con- 
science and a stem sense of right and justice. 

It was further shown with great delicacy by General 
Butler that the prisoner lost his masonic charm, that it 
was stolen from him. We all knew there were members 
of the masonic order upon this panel; our investigation 
of jurors had shown that. But if there was to be an at- 
tempt to drag masonry in here for improper purposes, I 
knew enough of that ancient and honorable order to 
know that such an attempt would fail. There is nothing 
in masonry that allows one mason to murder his brother 
mason, or that will prevent a mason from doing his duty 
to his conscience, to his country, and his God. Let 
not that ancient order be slandered ; a true mason is al- 
ways and everywhere a true and faithful citizen, and I 
have a right to say that every mason on this jury will dis- 
charge his conscientious duty. 

We now come, gentlemen, to consider this defence of 
insanity, and it is an attempt, I say to you with candor, 
to mislead you, to make you find a false verdict, and to 
make you exercise the pardoning power, a power not given 
by the Constitution tn the jury, but vested elsewhere. 

Perhaps right here gentlemen I ought to say to you 
what has not yet been stated, and what I think, with all 
due respect to our friends on the other side, has been pur- 
posely avoided, the law of responsibility as applied to a 
case of this kind. His honor, in his charge, will tell you 
that a man may have delusions, be partially insane, and 
still be responsible for his criminal acts. Society could 
not exist under any other rule. The judge will tell you 
that "although a man may be laboring under partial in- 
sanity, if he still understands the nature and character of 
his act and its consequences, if he has a knowledge that 



OF A LONG LIFE. 113 



it is wrong and criminal, and a mental power sufficient to 
apply that knowledge to his own case, and to know that if 
he does the act he will do wrong and receive punishment, 
such partial insanity is not enough to exempt him from 
responsibility for criminal acts". Take this law of re- 
sponsibility with you through the case and you cannot go 
astray. Has the case of that crank, Guiteau, gone out of 
your minds ? The world knew he was a crank, yet he 
was held responsible for his great crime. Take the case 
of the boy Pomeroy, who, when about fourteen years old, 
killed another boy, out of a desire to see human blood and 
inflict cruelties upon a playmate, he was held liable for 
his crime of murder. The sole question, therefore, for 
you to ascertain, gentlemen, is whether the prisoner had 
capacity and intelligence enough to know a right act from 
a wrong one, and to know the consequences following a 
wrong and criminal act. And by and by, gentlemen, you 
will see that he had a clear perception of his crime, when 
after the murder he hurried to the police station. He 
knew the place where a great criminal belonged, — in the 
lockup. He had satisfied his revenge, which, with pro- 
fane lips, he had threatened, and he then expected to take 
the consequences and suffer the penalty provided by law. 
This state of the prisoner's sane mind continued, until 
General Butler inspired him with hope. 

They say Goodwin's father, Harvey, was peculiar! 
Wonderful, is it not ? It is said in this world that no two 
men are exactly alike. We are all more or less peculiar. 
There is no community which does not have men with 
peculiarities. The world is full of them. If General 
Butler will excuse me, and I know he will, I will say, we 
have had before us for eight days the most distinguished 
illustration of a peculiar man. There never was and 
never will be but one General Butler. He is a great man, 



114 SOME RECOLLECTIONS 

possessed of great abilities, with great brain power, and 
yet, his most admiring friends do not claim him to be a 
man of perfect balance. 

I do not expect to occupy five hours in addressing you, 
(the time taken by General Butler), but I am confident, 
if you will give me your attention, I can convince you 
that there is no substance to this insane defence; I can 
satisfy your intelligence and your judgment that there is 
no solid foundation for it to rest on. We start, gentlemen, 
with the presumption that the prisoner was sane. The 
law presumes every man sane and responsible. 

The defence claim and attempt to prove, that the pris- 
oner was insans; that he had a delusion, that Mr. Swan 
had wronged him, cheated him out of his patent, and 
otherwise misused him. We find from the description 
given by the witnesses on either side, that we have in 
Henry K. Goodwin an erratic, jealous, envious and pas- 
sionate man, who did not control himself; not a bad 
hearted man, not a bad meaning man; but this is exactly 
the character of the man as you have heard it portrayed 
all the way through the case, eccentric, envious, jealous 
and at times very passionate. 

Kow then, gentlemen, we come to an important and 
decisive point in this case, the beginning and the end of it. 
They charge and we admit that Goodwin had said, what 
the evidence clearly shows, that Swan had his papers, 
patents, drawings, etc., and would not give them up. We 
also admit, as they now claim, that Swan had not wronged 
nor cheated him. But we deny that the prisoner was the 
subject of an insane delusion, because his belief was 
founded upon actual business transactions with Swan. 

The evidence gentlemen, to sustain this, needs only to 
be stated in general propositions to enable you to see its 



OF A LONG LIFE. 115 



truth. It is the key which unlocks this case and shows 
the combination; it explains and makes clear as daylight 
the evidence of the medical experts; and it separates and 
distinguishes the true from the false issues involved, so 
that you can make no mistake. 

First. Goodwin claimed that he had invented a switch 
board. This is no delusion. 

Second. He claimed he had lost possession of it 
through Swan. This is no delusion ; it had been assigned 
to Swan and others, so that Goodwin alone could not sell 
it nor take out, in his own name, the patent which had not 
actually been issued. 

Third. He claimed that Swan had his papers, old con- 
tracts, accounts, drawings, diagrams, important evidence 
of his invention, — and would not give them up. There is 
no delusion in that, gentlemen. They are found among 
the dead man's papers and are produced here in court. 

Fourth. He claimed that Swan had not done as he 
agreed. This is no delusion. The evidence shows con- 
clusively that the agreement under which the corporation 
was to be formed and the switch board manufactured and 
sold had not been carried out. 

About these propositions of fact, all the evidence I 
desire to touch upon, as showing the quarrel, loss of 
friendship, and final enmity growing out of these business 
relations, and here they may all be grouped and considered. 

First. In February, 1884, Goodwin and Swan were 
working together on the switch board. Goodwin rushed 
to Washington; borrowing the money of Mr. Knox to 
pay expenses. May 3d, one patent had been issued and 
another was about to issue, but was not taken out. It 
was put into interference by Dr. Waite. And here, gen- 
tlemen, the suspicion begins, and some time in July, 1884, 
more than a year before the homicide, was the last time 



116 SOME RECOLLECTIONS 

that Goodwin ever entered the house of his former friend. 
And here, gentlemen, I pause, perhaps a little out of order, 
to call your attention to General Butler's cruelty to Mrs. 
Swan. He says I brought the widow here to make an 
exhibition of her! Do you believe, gentlemen, I would 
have it in my heart to practice such an artifice to the in- 
jury of this prisoner, whom I have no wish and certainly 
no right to wrong? I should be unworthy of the high 
office I hold, should I do such a thing ; and General Butler 
does not believe it, for he has said, in your presence, that 
I am an honorable man, and such conduct is utterly in- 
consistent with honesty. 

But let us consider whether the testimony of Mrs. Swan 
was important; if it was, then we can determine the 
animus and character of the remark. The defence claims 
that there was no disagreement or quarrel between 
Goodwin and Swan, but that they were intimate, personal 
friends on the day of the homicide, and therefore, as 
Goodwin killed his best friend, he must have been suffer- 
ing under a delusion. We deny this position of the 
defence, and claim, first, that there was jealousy and sus- 
picion on the part of Goodwin against Swan; secondly, 
misunderstanding and disagreement between them; and 
finally, an open quarrel, with loss of confidence in Good- 
win by Swan, and eternal hatred and enmity on the part 
of Goodwin. If Mr. Swan were alive, do you think I 
would have any difficulty in showing these facts ? And 
although they put in the declarations of Swan to Stowell, 
on one occcasion, yet the moment I offered to open the 
lips of the dead so that he might speak on this all impor- 
tant subject. General Butler was loud with his objection. 

But if the lips of the dead are forever sealed, the living 
may speak, and I summoned and called to the witness 
stand that modest widow, that refined and cultured lady, 



OF A LONG LIFE. 117 



who gave testimony so clear and straight-forward, that 
General Butler had not the courage to cross-examine her. 

She says her husband and the prisoner were as intimate 
as men could be, up to July, 1884; that prior thereto 
they occupied the same room and bed when in New York ; 
that Goodwin was at their house quite frequently, at 
dinner, tea and in the evening, but never after August 
1st, 1884. This evidence goes with the letters, the cor- 
respondence, which ceased altogether about that time. 
Prior to the commencement of the trouble, it was "Dear 
Albert", "Friend Swan" and "Dear Friend" ; after sus- 
picion began its work, it was "Albert". Her evidence is 
of the highest importance; it corroborates the evidence 
of Messrs. Knox, Waite and Denman, and if I had not 
called her, I should have failed to discharge my duty to 
the Commonwealth. 

Suppose, gentlemen, Mrs. Swan with her little boy had 
sat near me, during the whole trial, and whenever you 
went out of the court house, you had observed them walk- 
ing hand in hand, you might have believed I was having 
her "play a part", like some of the exhibitions on the part 
of the defence in the "stage settings", heretofore referred 
to. She was here in court only one day, and only long 
enough to give her evidence, and then she returns to her 
own desolate home, and to her unobtrusive and silent 
grief. The prisoner, wickedly, cowardly and maliciously, 
took the life of her husband, and now when he cannot 
speak, and she comes to speak the truth in vindication of 
him, the prisoner's counsel, without justification, wickedly 
and cruelly says she is being exhibited! Shame on the 
words and the lips that utter them! 

Her evidence will stand, a perpetual vindication of her. 

Yes, gentlemen, we show you the commencement of 
this quarrel. In July, 1884, the prisoner goes hurriedly 



118 SOME EECOLLECTIONS 

to the house of Mr. Swan — the last time he was ever there 
— not finding him, he seeks him at the office, and then 
they both go to Mr. Knox's house, and he gave you as a 
reason why he did not invite them in, that his little girl 
was ill of scarlet fever, and he feared that Mr. Swan's lit- 
tle boy might take the disease, and so they talked in the 
yard under a tree. This interview shows that jealousy and 
suspicion had already commenced its work. We have 
then, the testimony of Mrs. Swan, Mr. Knox, and the 
letters, and the fact that the correspondence ceases at the 
time the trouble began. But General Butler, who is so 
profuse with his attacks and charges, insinuates that we 
are holding back some of Goodwin's letters! That is a 
cruel suggestion to make, and hard must be the defence 
which requires it. I beg your pardon, gentlemen, for 
speaking of myself, but I am compelled to. Do you 
believe I am so base, that I would suppress a letter that 
had anything to do with this case? Mr. Knox swears 
that he produced every letter found. But the best answer 
to this unkind insinuation, and the one which proves the 
insincerity of it, is: that they produce no letters of Swan 
to Goodwin after that date, which, if there were any, 
would be in the prisoner's possession; proving beyond 
doubt or controversy, that the correspondence ceased at 
the time and for the reason claimed by us. 

Second. Goodwin said and claimed that he had parted 
with his title to the switch board. There is no delusion 
in that; it is an undisputed fact. We put in the very 
contract, — and General Butler was kind enough to read 
it, — in which on August 1st, 1884, he conveyed all his in- 
terest in the switch board to five persons, but dividing it 
into four shares, Livermore, Waite and Bartlett, Swan 
and Goodwin, having one-fourth each. 

They say this prisoner had a delusion as to the value 



OF A LONG LIFE. 119 



of his patent, in thinking or claiming it was worth forty 
thousand dollars, when Knox, six months or a year after- 
wards, thought it of little value, and Waite, another 
inventor, considered it not very valuable. 

All this is as plain as the nose on a man's face. Here 
was Goodwin, a poor boy, who had been working in a 
harness shop in a quiet way at small pay; he went into 
the telephone business, had shown considerable ability in 
that direction, and had suddenly and unexpectedly made 
over two thousand dollars. He was elated by it, as was 
most natural, and he was a good deal set up by it. His 
egotism manifested itself, and he saw in his patent, like 
all inventors, mountains of gold. 

If every inventor, who obtained a patent and considers 
it of great value, is suffering under delusion, I fear there 
are a great many men under delusions. 

There was then, an agreement that these men should 
form a corporation and manufacture and sell the switch 
board, and Goodwin is writing from Maine, August 4, 
1884, in the letter which I read to you, inquiring about it. 
He has signed the contract, dated August 1, and writes: 
"Have they started to make the new telephone in the 
factory yet" ? He is in a hurry and cannot wait. 

I have shown you, that these two claims of his were en- 
tirely true, were matters of fact, about which there can be 
no dispute. 

Third. Goodwin claimed that Swan had his papers, 
contracts, diagrams, etc. ; and we find them, evidence 
which the bullet of the assassin cannot destroy, and they 
are produced here in court. General Butler says now, that 
these papers are not very important. Ah, that is not the 
question. Did Goodwin then think them important, and 
on that account was he demanding them ? Yes. 

I disagree with the eminent counsel, and am of the 



120 SOME RECOLLECTIONS 

opinion, as testified by Mr. Knox, that these papers were 
of great importance to Goodwin. They showed that 
Goodwin had invented and used the switch-board in 1879, 
prior to any other person. Priority of invention and use,. 
is what establishes one's right to a patent; Mr. Knox, an 
excellent lawyer, explained that to you, although Brother 
Butler doubts whether you can believe him. But Mr. 
Knox has lived too long in this county to be snuffed out 
and disposed of so easily. You saw him and never ob- 
served a more candid appearing man. He is the very 
type of Mr. Swan; they were like as twin brothers; you 
see one and you have seen the other. But Mr. Knox's 
evidence is too important not to be attacked. It is not 
enough that he should lose his life-long friend, but Mr. 
Knox must needs be attacked because he gave such in- 
formation as he had concerning the case to the Attorney 
General! Good heavens! Mr. Foreman, suppose your 
partner and dearest friend on earth had been assassinated, 
would you not think you owed it to his memory and the 
public to do all you could to have the murderer brought 
to justice! 

There can be no doubt, these are the papers Goodwin 
wanted; they showed he invented and used the switch 
board in 1879, prior to the time Waite used it. 

Fourth. The prisoner claimed that Swan had refused 
to settle, to pay him what he had advanced, to buy him 
out. He claims that he had demanded a settlement and 
been refused, that he had threatened to have Swan's 
heart's blood. 

Well, gentlemen, was there ever a settlement ? There 
is no evidence of it; on the contrary, it is shown that 
there was no settlement. Goodwin did demand one and 
he said, having been cheated and defrauded twice before 



OF A LONG LIFE. 121 



he swore the next time a man wronged him he would have 
his heart's blood. 

Fifth. He claimed Swan had not done as he agreed. 
This is no delusion. The parties, Goodwin, Swan, and 
others, August 1, 1884, entered into a written contract to 
form a corporation and manufacture and sell this patent 
switch board. They did not do it. They never have car- 
ried out that agreement. What more was needed, gentle- 
men, to disappoint such a man as Goodwin ? He expected 
great riches from the manufacture and sale of this patent. 
The other parties who had a controlling interest and could 
out vote him had done nothing; the whole thing was at a 
standstill. There is no delusion about that, it is exactly 
as Goodwin claimed. It appears from the evidence of 
both Waite and Knox that this corporation never manu- 
factured a switch board. The reason why they did not 
do so appears, and shows there was no intent or purpose 
to wrong Goodwin. They wanted this patent to use and 
sell in connection with the Molecular Telephone but they 
were subsequently enjoined and prohibited by the courts 
from using that telephone. Goodwin had a right to com- 
plain ; it was entirely reasonable that he should find fault 
with Swan because he failed to keep his contract; there 
was no delusion in such complaint, but it had in it real 
solid and common sense. ITow, gentlemen, you will see 
that all these allegations, which Goodwin made, — and I 
have recited to you — five in all, were literally true, and he 
was right about them. 

All the government has to do is to satisfy you that there 
was an ill feeling, a quarrel, between these men, — not 
that there was an adequate cause for the murder, because 
there can be no adequate cause for crime — and when we 
do that, this defence is at an end and the prisoner is 



122 SOME EECOLLECTIONS 

proven guilty. Every doctor, every expert on insanity, 
even Dr. Hamilton, tells you, that if there was in fact 
trouble, a quarrel, between these two men, it ends this 
whole question of delusion, the defence fails. Mr. Knox 
swears before you, that he met Goodwin and Swan 
several times, and that Goodwin was each time making 
demands upon Swan; that he was present at the inter- 
view between them after Goodwin's return from Cleve- 
land, and he gives you a full account of what took place. 
It is so pertinent, so completely conclusive of the case, I 
-desire to call your attention to it, and read his evidence, 
because if you believe him, and as I look into your faces 
I know you will, as his evidence carries conviction to the 
conscience. 

William S. Knox. "As I came in they were talking. 
Swan was sitting, Goodwin was standing. Goodwin was 
excited and pale, as I noticed. He was speaking as I 
came in and he said to Mr. Swan, that he never had been 
paid for what he had done and put out on that patent, and 
Swan told him that nobody had got anything out of it yet. 
He said if he could take out the patent in his own name 
and had the one he had taken out, he could sell it for 
something, and he wanted it. Swan said: "It is too late 
to talk about that now". Then Goodwin said that there 
were a lot of old contracts, books and papers in Swan's 
office which he had in Lawrence in 1879, they were not 
made over to those parties or to Mr. Swan, and those 
were his, that he wanted them. Swan said they were im- 
portant upon this system or switch, if it was ever issued, 
and he considered that he had the same right to them as 
lie had to the patents themselves or the papers themselves. 
Then Mr. Swan went on and said that if he (Goodwin) 
had done as he ought in Ohio, put in the system there and 
furnished the diagrams that they wanted, he could have 



OF A LONG LIFE. 123 



been there and the system could have been started, but 
he didn't, and Swan said he would do nothing about it. 
I left them talking". 

General Butler made an argument to you that these 
contracts were not of value or consequence. I say to you 
with all due respect to him, that the claim which Good- 
win made at that interview was a good one as matter of 
law ; he had an undoubted right to those papers, they had 
not been made over or assigned, although Swan had pos- 
session of them. But it is only of consequence now as 
showing that there was a controversy, that there was an 
actual dispute and not a delusion on the part of Goodwin. 
Swan said these papers were important upon the subject 
of the switch board. That is exactly what we have 
claimed. They were important as showing who invented 
the switch board, who had the right to it. It is the pri- 
ority of invention which gives a man the right and title to 
a patent. 

Here is the prisoner walking into Swan's office, pale 
with excitement, and demanding these books and papers 
which belonged to him. Here was an actual transaction, 
gentlemen, "I want them" he says, "I didn't make over 
to you those old books and papers, which show the pri- 
ority of my invention". Swan said, "they were impor- 
tant upon the system of switch, and he considered he had 
the same right to them as to the patents themselves". 
Goodwin demands them, and Swan tells him, finally, "he 
would do nothing about it". 

This evidence opens to view a controversy about actual 
existing facts, shows that they had had trouble and quar- 
reled over it, that Goodwin became excited and enraged, 
demanded his papers, and that Swan refused to give them 
up ; that then Goodwin exhibited the same disposition 
shown elsewhere; the same shown when he thought 



124 SOME EECOLLECTIONS 

Waite was getting ahead of him concerning a patent, — 
and threatened to kill him. Goodwin's delusion seems 
to have run against anybody who interfered with him! 
He is an irritable, jealous, excitable man, and when Swan 
refuses to give up papers which Goodwin believed he had 
a right to, and which as matter of law he had a right to, 
then you see the state of mind he is in, and what it finally 
leads to. A man has no right to allow his passions to run 
away with him, the laws holds men responsible in such 
cases. 

General Butler has assumed many things here concern- 
ing the prisoner and then says they are all delusions; he 
makes a man of straw and then demolishes him. But 
see how easily he is answered, even by me, and the answer 
probably has suggested itself to the intelligence of every 
man on your panel long ago. General Butler says that 
Goodwin had a delusion up in Canada that Swan was fol- 
lowing him. 

General Butler. Preceding him. 

Attorney General. I prefer to argue the case myself. 

General Butler. I am merely stating my ground to 
correct your mistake. 

Attorney General. I prefer to argue according to my 
understanding of the evidence, and I do not intend to 
occupy over one-half of the time you did (five hours). It 
is claimed that Goodwin had a delusion that Swan was 
preventing him from getting work. Denman said Swan 
told him, "Don't you recommend him". Goodwin could 
not obtain work without such recommendation. The first 
question asked him was, "Where did you come from, for 
whom have you worked" ? "I have been at work for 
Albert D. Swan", or, "I have been at work for Swan and 
Knox". "Have you a recommendation". "No". 

He went to Canada and there sought work. I do not 



OF A LONG LIFE. 125 

know how long he stayed, there is no evidence on the 
subject; it may have been one, two, or three weeks. He 
says he applied for work and at first they thought they 
would try him ; but in the interim they must have written 
to Swan. We have been able to prove that Swan received 
a letter, and he and Knox — 

General Butler. I object, may it please your Honors. 
This is exactly what your Honor ruled out, and now if it 
is to be argued in, I should like to understand it. 

Attorney General. I do not understand it so. 

General Butler. You offered to prove something about 
a letter received from Canada and a reply, but you did 
not produce any such letters, and I said if there were any 
such letters you ought to produce them, and the Court 
ruled it out. I^ow, you can't argue that to the jury, sir. 

Attorney General. The Court allowed me to put in the 
fact that a letter had been received, and an answer sent 
without putting in the contents of the letters, and that is 
all I am trying to put in now. 

General Butler. Pardon me, the Court has allowed no 
such thing, if it please your Honors. 

Attorney General. I think the report will show to the 
contrary. 

General Butler. You offered the contents of a letter, 
of the fact that one was sent ; then there was an objection 
that these letters ought to be produced, if there were any 
on either side; one letter would be in the hands of Swan 
or Knox, if they received one, and the answer to it would 
be in the hands of the other party, — and nothing could 
be proved about it, as your Honors ruled, and the matter 
passed away. Your Honors will remember that I said, 
"now perhaps I see dimly why my Canada deposition 
was objected to". I ask your Honors to rule upon this 
point, because it is very important. 



126 SOME EECOLLECTIONS 

Allen, J. There was no evidence as to the contents of 
these letters, but the fact that a letter was received and 
answered was in the case and is in the case, but not the 
contents of the letters. 

Attorney General. It is exactly as I stated it to you, 
gentlemen. 

General Butler. Your Honors will save me an excep- 
tion. 

Attorney General. It appears that a letter was re- 
ceived from Canada, and an answer sent after consulting 
with Swan. Goodwin went to Canada, and what followed 
is plain. He applied for work and had no recommenda- 
tions. They sat down and wrote for some purpose to Mr. 
Swan. 

General Butler. 'Now he is arguing the contents of the 
letter, the purpose of the letter. 

Attorney General. No, I am not. There was an an- 
swer sent back, and that fact, is all I am entitled to. But 
I say, gentlemen, it was not a delusion. These suggestions 
are a complete answer to the claim of delusion. 

They say, the prisoner had a delusion concerning his 
trunk having been broken open and articles stolen there- 
from. The only evidence on the subject comes from 
Goodwin. He said his trunk was broken open, and cer- 
tain articles were stolen, and he thought Swan had some- 
thing to do with it, or was at the bottom of it 

My brother in his argument, assumes that the trunk 
was not broken open at all! Upon what ground? Do 
they claim that Goodwin, a perfectly honest man as they 
say, told a lie about it? No; his trunk was broken open 
and his property stolen, and Goodwin told the truth about 
it. What is more likely, that a suspicious, jealous man, 
having had a quarrel with Swan, and having articles 
stolen which would be of value to Swan in connection with 



OF A LONG LIFE. 127 



this patent, should suppose and believe he may have had 
something to do with it? We are apt to believe our ene- 
mies do us more injury than they really do. It is also 
claimed that Goodwin had delusions, because when he saw 
members of the Cleveland company talking together he 
believed they were talking about his switch board. Un- 
doubtedly they were talking about it; they had requested 
him to put it in for their company and he had refused. 
They were having trouble about it. What would be more 
likely than that the members of the company should talk 
about the very thing which was causing such serious 
trouble. 

We have now considered, and I trust candidly and fair- 
ly, all the evidence offered by the defence, except that of 
their experts, and we will examine that by and by, and I 
desire to call your attention to the evidence of the gov- 
ernment in answer to particular acts tending to show in- 
sanity. 

Right here let me tell you what ended the controversy 
between Goodwin and Dr. Waite. The doctor upon 
meeting Goodwin, told him to his face, looking him in the 
eye, that he had heard of his threat to kill, and that 
if he ever saw the first motion in that direction on Good- 
win's part he would shoot him as quick as he would a dog. 
Goodwin is a natural coward ! He would not fight in the 
war, said he enlisted as a drummer, until his lieutenant 
told him that if he showed the white feather he would 
shoot him. 

This murder is one of the most cowardly ever com- 
mitted! Think of a man who has been a soldier, armed 
with a revolving pistol containing five charges and with 
that dangerous stiletto, entering the ofiice of a man who is 
unarmed and defenceless, and while that man is writing 



128 SOME KECOLLECTIONS 

at his desk, entirely off his guard and unsuspecting, creeps 
behind him and shoots him in the back of the head! This 
is not the act of an insane man, there was too much 
method in his madness; it is the cowardly act of a sane 
man! In South America even, they give an enemy a 
show for his life. 

But, gentlemen, we do not stop by proving that this 
prisoner never exhibited to the public, to his acquaint- 
ances, and to his intimate friends, any evidence of de- 
lusions or insanity. We have something more potent and 
important. His letters and correspondence, for many 
years past, which have been read to you by the district 
attorney, his applications for patents and affidavits, pre- 
pared by himself and in his handwriting, and his dia- 
grams and drawings, showing his great inventive genius, 
scientific knowledge and practical experience, are all be- 
fore you, and you will have them with you in the jury 
room. These are convincing and conclusive proofs that 
the prisoner is and was a perfectly sane and responsible 
being ; and right here in court we find the prisoner calling 
Messrs. Waite and Knox to the dock and suggesting how 
they can so shape their evidence as to help this insane 
defence! General Butler forgetting himself and his de- 
fence, you will remember, went to the dock and told the 
prisoner, in your hearing, not to talk to anybody. Think 
of saying that, to a man claimed to be insane ! 

I fear, gentlemen, I have wearied you, and were it not 
for the fearful responsibility which is upon all of us, I 
should hesitate to take more of your time. 

******** 

So, Mr. Foreman and gentlemen of the jury, it is 
proven and established: 

1. That Goodwin and Swan commenced to have 



OF A -LONG LIFE. 129 



trouble in the summer or fall of 1884; that trouble in- 
creased until Goodwin came back from Cleveland in 
April, 1885, when there was an open quarrel; that the 
-quarrel increased in violence until August 27, 1885, when 
Ooodwin took the life of Swan on account of the quarrel 
and to satisfy his hatred and revenge. 

2. You have the testimony of a large number of wit- 
nesses, associates, companions and friends of the prison- 
er, for a series of years, that he exhibited no evidence of 
delusions or insanity. 

3. His own letters, affidavits, applications for patents, 
diagrams and drawings, his own writing and handiwork, 
are conclusive evidence in the same direction. 

4. We have the evidence and opinions of five of the 
ablest scientists in New England, Doctors Goldsmith, 
Hurd, Bancroft, Thompson and Jelly, who tell you, if 
there was a quarrel before mentioned, then there is no 
doubt the prisoner was sane and entirely responsible for 
his crime. In fact Dr. Hamilton also agrees to this, but 
I am unable to recommend him to you as an expert on 
insanity. 

It having been established, we having sustained the 
burden which is on the Commonwealth to prove that the 
prisoner was responsible for his criminal act, we come 
now to consider what crime he committed. And I agree 
with the prisoner's counsel, that Goodwin is either not 
guilty by reason of insanity, or he committed this murder 
with deliberately premeditated malice aforethought. Was 
there ever committed a more cold-blooded, deliberately 
premeditated murder? Was there ever a more wicked, 
malicious and cowardly assassination? A murder con- 
templated and threatened for many months ; a murder 
deliberately planned and calmly executed in accordance 
therewith. A murder for money, because Swan would not 



130 SOME EECOLLECTIONS 

pay what the prisoner claimed was due, or give up papers, 
etc., which belonged to him ; the deliberate act of the high- 
wayman, "Your money or your life" ! A wicked spirit 
has been cultivated and encouraged for a long time, until 
it has taken control and mastery of the man, and been al- 
lowed with deliberation and premeditation, to break forth 
and satisfy its hatred and revenge. "I told him a year 
ago, if he did not come to a settlement with me, I would 
have his heart's blood, I have taken it, and I am satisfied 
and prepared to take the consequences". Two days before 
he sold his tools to Bunker, saying, "you will see what I 
am going to do in a day or two". Dr. George W. Sar- 
gent, the physician at the jail, a gentlemen and a man of 
honor, says Goodwin told him Christmas day that he went 
to Swan's office that morning with the intention and for 
the purpose of killing him. Those weapons, with which 
he was armed, the revolver and the dagger, confirm the 
evidence. That young man Porter, with an honest face 
and a truthful story, not contradicted by Frank Stowell, 
who was present, tells you Goodwin said on the way to 
surrender himself to the police, "I have killed the son of 
a bitch". The calling the police by telephone, the deliv- 
ery of the weapons to his uncle, the walk to the police 
station, his conversation and coolness there, — "You need 
not fear I will commit suicide", all show a premeditation 
and programme and the deliberate execution of the same j 
and there is not a single thing which can be said in ex- 
cuse, or a circumstance offered in mitigation of this cow- 
ardly assassination. All the defence attempt to say is that 
Goodwin really thought Swan had cheated and greatly 
wronged him, but they now admit that Swan had not 
seriously wronged him, and that was a mistake. A pretty 
serious mistake for Mr. Swan and his heart-broken fam- 

iiy. 



OF A LONG LIFE. 131 



You have been selected, gentlemen, to decide this 
momentous issue. Your names and residences have been 
given to the public, and a great responsibility is upon 
you. The City of Lawrence, the County of Essex, the Com- 
monwealth of Massachusetts, and all ISTew England are 
anxiously waiting for your verdict. The wives of Essex 
do not want to be bereft of their husbands by wilful mur- 
der and have it called delusion, and the children of the 
county do not want to lose their parents by assassination 

and have it called insanity. 

******** 

Passing over many things which perhaps I ought to 
refer to, and which I shall think of as important here- 
after, I choose my closing words with some care and de- 
liberation. We cannot, gentlemen, ask your sympathy. 
Your verdict cannot give back the husband to the widow 
nor the father to the orphan. I can only appeal to you to 
protect society. God help us if the revolver and the sti- 
letto of South America are to become potent in Massachu- 
setts. God help us if the hatred of our enemies is to be 
called a delusion! God help us if the verdicts of juries 
are to go to the ablest lawyer ! Gentlemen, up to the fifth 
day of January, in the year of our Lord eighteen hundred 
and eighty-six, juries in Massachusetts have stood against 
this claim of insanity as a defence to murder. If the 
barriers are now to be let down for the first time, I hope 
I have so discharged my duty that the responsibility will 
not rest on me, but it shall rest where it belongs, upon the 
heads of the twelve men who fail to keep their oaths, and 
fail to discharge their duty to their country and their 
God. 

[Judge Allen charged the jury. They retired to con- 
sider their verdict about 6 o'clock, and returned into court 
between twelve and one o'clock on the morning of the 6th 



132 SOME EE COLLECTIONS 

of January with a verdict of murder in the second de- 
gree.'] 

April 20, 1886, Goodwin was sentenced to imprison- 
ment for life in the state prison. 

March 17, 1905, Goodwin was granted a conditional 
pardon by the governor and council, and is now (1907) 
in the Soldiers' Home in California. 



CHAPTER Yin. 



ATTORNEY GENERALSHIP,— Confmwed 



Commonwealth vs. Alfeed J. Adams. 

On November 5, 1875, one Dickinson was found dead 
in his house where he lived alone in Amherst. An axe 
covered with blood was by his side. He had been dead 
several days when discovered. 

It was remembered that Dickinson had hired a tramp, 
who came along, to help him harvest his tobacco. A re- 
ward of $500 was offered for the detection and conviction 
of the murderer. A description of the tramp was sent 
out by the authorities on a postal card announcing the 
offer of reward. 

Ten years afterwards a sheriff in the mountains of 
Tennessee sent a letter to the postmaster of Amherst mak- 
ing enquiries concerning the murder and offer of reward. 

The sheriff subsequently stated that he had the mur- 
derer in his possession, Alfred J. Adams, who had been 
convicted for forgery and sentenced to serve with a chain 
gang in the mines. Adams confessed that he was the 
murderer of Dickinson, told all the particulars, and said 
that he preferred to be hanged in Massachusetts than serve 
his sentence in the mines. 

Adams was subsequently indicted and brought back 
here for trial. It appeared at the trial that Dickinson 
had sold his tobacco, receiving some $200 ; that Adams 



134 SOME KECOLLECTIOJNTS 



was with him at the time, and that night while Dickinson 
was asleep on the lounge Adams killed him with the axe, 
took the money and left. He had followed the vocation 
of tramping and stealing since. 

He was not a bad looking man, being six feet tall. At 
the trial some very respectable ladies in Northampton 
sent the prisoner flowers. The defence was insanity. 

The venerable Dr. Earle, in charge of the insane 
asylum at l^orthampton, who was opposed to capital pun- 
ishment, testified at the trial, that Adams was sane enough 
for murder in the second degree ! 

Adams was convicted of murder in the first degree. His 
counsel applied to have the sentence commuted to impris- 
onment for life in the state prison, which the governor 
and council refused. Adams remarked that they would 
have to postpone his execution. That afternoon Adams 
came so near committing suicide, that the governor and 
council had to postpone execution. 

Adams insisted that he would not have a clergyman at 
the execution, but the sheriff insisted that it was his, the 
sheriff's duty to provide one. While the clergyman was 
praying, Adams was swearing at him, until the rope cut 
off the profanity. 

Adams was a low, tramp thief, with just enough intel- 
ligence to know better. 



Case of Maeion A. Montgomeet. 

Marion Augustus Montgomery was tried in the Supreme 
Judicial Court at l!^orthampton on the 11th, 12th, and 
13th days of December, 1883, for murder of his little son, 
George Clarence, aged five years. 

Montgomery, a man of forty years of age had married 



|i 



OF A LONG LIFE. 135 



fifteen years before and had two children, a little girl of 
seven and this boy of five. He went away from home one 
winter to work on a railroad. When he returned in the 
spring he found that during his absence his vtdfe had 
taken a boarder. 

When he went away he was a happy man and his fam- 
ily relations were pleasant. When he returned he dis- 
covered that his wife's feelings and relations towards him 
had changed, that she liked the other man better. He 
tried to win her back but did not and could not succeed. 

Finally she left him, taking the two children, and went 
to live with her father. She sent her husband a letter, 
telling that on such a day she was going to a western state 
to live. Subsequently he went to that state looking for 
her and the children. It turned out that she did not go 
west, but remained living with her father. 

Montgomery, after earning money enough to pay his 
fare back east, came home. He used to walk nine miles 
to her father's house, to look in at the window to see 
his children. He wrote and asked her, to allow him to 
come to the house to bring Christmas presents to the chil- 
dren. She wrote an answer consenting. He took a sled 
to the boy, a present for the girl, and a present for his 
wife. He was allowed to remain at her father's house 
over night, occupying a room by himself. 

In the morning, in an interview with his wife, he asked 
her, "Are you ever going to live with me again" ? She re- 
plied, "ISTo". "That settles it", said Montgomery, and 
walked into the room where the little son was playing on 
the sled, shot him through the head, killing him instantly, 
shot the little girl through the neck, when the father-in-law 
grappled with Montgomery and prevented further blood- 
shed. I think he intended killing the children, the wife, 



136 SOME RECOLLECTIONS 

the other man, and himself, but for the interference of 
the father-in-law. 

The defence was insanity. Hon. William A. Bassett 
made one of the best and most sympathetic arguments I 
ever heard to induce a jury to return a verdict of not 
guilty by reason of insanity. He would call attention of 
the jury to how shamefully the wife had acted, and how 
Montgomery had walked nine miles in the rain simply to 
look through the window to see the children, and then his 
refrain would be, "And all this he did and suffered for 
the love of his children". 

It drew tears from all of us. I sympathized with the 
prisoner, but felt that he was responsible for his acts. 
The little girl recovered and was present at the trial. 

The jury returned a verdict of guilty of murder in the 
second degree, and Montgomery was sentenced to state 
prison for life. He was pardoned by the governor and 
council, July 18, 1893. 

Case of Samuel F. Besse. 

Samuel F. Besse was tried at Plymouth in May, 1886, 
for the murder of Richard IST. Lawton, before Morton, 
Chief Justice and Holmes, Judge, in the Supreme Ju- 
dicial Court. 

Hosea Kingman and J. C. Sullivan were for the pris- 
oner. The District Attorney assisted me in the trial. 

Lawton drove about Plymouth County and purchased 
eggs of the farmers. While driving through the Ply- 
mouth woods he was shot and killed. Some $30 was taken 
from him. 

Besse, who was a man generally without money, waa 
found to be spending money quite freely. It was found 



OF A LONG LIFE. 137 



that lie had spent just about the amount taken from Law- 
ton. 

This, with other evidence was sufficient to cause his 
conviction of murder in the first degree. His case was 
taken before the full court on a question of law. (See 
Commonwealth vs. Besse, 143 Mass. R. 80.) The Court 
sustained the verdict and Besse was sentenced and sub- 
sequently executed at Plymouth jail. 



Case of James E. I'5'owlin. 

George R. Codman, a milkman, hired James E. l!^owlin, 
a boy of seventeen, to assist him in his business. 

January 4, 1887, it was ascertained that Codman had 
been murdered in the early morning, young ^N^owlin spring- 
ing upon him unawares and nearly severing the head from 
the body with a large knife. Nowlin then took some $22 
from the body, cutting off the legs and arms from the 
trunk; took an old pung sleigh, and distributed the body 
in the snow in different parts of the neighborhood. 

!N"owlin was arrested, indicted, and tried June 21 and 
22, 1887, before Field and William Allen, Justices of the 
Supreme Judicial Court, at East Cambridge. Henry E. 
Fales and Charles C. Mellen represented the prisoner, and 
District Attorney Stevens appeared with me for the Com- 
monwealth. The case was clearly proven. The defence 
was insanity. 

The boy N^owlin, only about 18 years of age, had not 
been well brought up; his father and mother were dis- 
reputable, and his brother was under arrest for a crime. 

At the trial, Nowlin's mother testified for the son that 
from earliest infancy up to the time of the murder, James 
had shown signs of insanity; that he had proposed and 



138 SOME EECOLLECTIONS 



perpetrated the most unnatural acts; that lie had never 

acted like a natural, well born child, etc., etc. j 

A reputable physician was sitting in the court room, i 
whom it was reported she had consulted on the subject of 

her son's sanity. , 

In cross-examination she was asked: i 

Attorney General. After your son was indicted for this 
murder, did you not employ Dr. A. B., now sitting here in 
court, to examine your son, to ascertain if he was insane, 
and did he not examine your son at the jail ? 

Mrs. Nowlin. Yes. 

Attorney General. And did not the doctor ask you to 
tell him all and every instance when you had noticed any- 
thing unusual or peculiar in him from his childhood to the , 
present time. 

Mrs. Nowlin. Yes; he did. I 

Attorney General. l!^ow, Mrs. ISTowlin, did you not tell J 

him, that you had never noticed any thing unusual or ' 

peculiar in your son? 

Mrs. ISTowlin. Looking at the physician (supposing he 
had told the Attorney General the facts). Yes; I did. 

Attorney General. Mrs. N"owlin, you did not then tell 
the physician one single one of these peculiar and un- 
natural acts which you have testified to here today, did 
you? 

Mrs. !N'owlin (looking at the physician), answered: 
"No ; I did not ; and then fainted and had to be carried out 
of the court room. 

Every one in the court house sympathized deeply with 
Mrs. l^owlin; but her answers convinced every one that 
her testimony concerning the peculiar and unnatural acts 
of her son was not true. This practically ended the de- 
fence of insanity. 



OF A LONG LIFE. 139 



It is just to the physician to say that he had not disclosed 
a word of what had occurred between him and Mrs. 
Kowlin. 

Knowing that the physician was an honest man, and 
believing that that conversation would be likely to take 
place, I guessed the fact. If she had answered otherwise, 
the government would have called the physician to the 
witness stand. She believing this, answered truthfully con- 
cerning her conversation with the physician. 

J^owlin was convicted of murder in the first degree, and 
sentenced to be executed January 20th, 1888. On account 
of the youth of the prisoner, and considering the poor op- 
portunity he had had in birth and bringing up, I was in 
hopes that the Governor and Council would commute the 
sentence to imprisonment for life. 

In the mean time a brother had been arrested for a 
burglary, and the disreputable character of the whole fam- 
ily had been made known. 

The Governor and Council finally refused to commute 
the sentence and JiTowlin was executed. He showed great 
consideration and coolness and courage before and at his 
execution. 

He saw that the sheriff felt great sympathy for him, 
and would gladly avoid the carrying out of the sentence 
upon one so young. He said to the sheriff. Do not worry 
about it Mr. Sheriff, I shall give you no trouble. I am not 
afraid to die. Send for mother to come and see me a day 
or two before the execution, and after her crying is over, 
you will not have a whimper from me. 

True to his word, he walked to the scaffold with a steady 
step, helped the officers in their unpleasant duties, and 
passed unflinchingly to the great majority. 



140 SOME RECOLLECTIONS 

Case of Sarah J. Robinson. 

She was indicted for the murder of her son by poison- 
District Attorney Stevens and I prepared the case fo"r 
trial, but I was appointed to the bench, before it was 
reached, and the case was tried by my successor, Attorney 
General Waterman, with the assistance of the District At- 
torney. She was convicted of murder in the first degree, 
and sentenced to be hung. Because she was a woman, the 
sentence was commuted to imprisonment for life. She 
died a few years since while in prison. 

Mrs. Robinson was at the time of her trial a good look- 
ing and well appearing woman, of much intelligence. It 
was an interesting case and she a person to study. She 
had been married many years and had had a number of 
children. Her husband and several children had died be- 
fore she was suspected of murder. We became satisfied 
that her husband and several others, including her chil- 
dren, some five or six persons in all, had been poisoned 
by her. Some to obtain life insurance, others for other 
causes. 

She would hire a house, obtain furniture on a lease or 
the instalment plan, then mortgage it under different 
names, obtaining money on each mortgage. She was in- 
dicted jointly with a Dr. Beers and a Mr. Smith. As 
it appeared that they each had been much at her house, 
without any good cause, the grand jury believed that they 
were parties to the murder. 

Our investigation showed that both men were much 
fascinated with Mrs. Robinson and were at her house 
often, but never at the same time. Smith appeared to be 
a very pious man, thinking and talking religion and trying 
to make converts all the time. 

We, the District Attorney and myself, became fully sat- 



OF A LONG LIFE. 141 



isfied that neither Dr. Beers nor Mr. Smith had anything 
to do with the murder, so they were released from jail on 
hail. 

Subsequently her counsel called upon me with an ur- 
gent request from her that I come to the jail to see her. I 
at first declined, thinking it would be unwise to comply 
with her request. But at last I consented with a distinct 
understanding, that during the trial nothing should be 
said about the interview. 

Taking her lawyers, the sheriff, an officer of the court 
with us, we had an interview. I stated to Mrs. Robinson 
that she was to be free to talk, as it was agreed between 
her counsel and myself that nothing she said could ever 
be used against her, and that nothing said by any one at 
this interview could be used or referred to at her trial. 
She soon made known her purpose in asking for the inter- 
view. As we had discharged Dr. Beers and Mr. Smith 
because they were not guilty, she wanted to convince us 
that she was not guilty. So she talked and talked. 
We listened. She invited me to ask questions, to cross ex- 
amine her, but I said "ITo". Finally I said, "Well, Mrs. 
Hobinson, I will ask you one question. What were your 
relations with Dr. Beers" ? "What do you mean" ? said 
Mrs. Robinson. "I think you know what I mean", said I. 

"Oh", said she, "they were always proper, most proper. 
He never said an improper word or did an improper thing 
to me". 

"Well", said I, "it is of no consequence to the charge 
against you, but I asked simply as a test of your truthful- 
ness ; but I ought in frankness to tell you, I do not believe 
what you say. Our evidence shows that he was much in- 
fatuated with you, that he was with you for years, once 
or twice a week, with no business, only to be with you 
alone". 



142 SOME EECOLLECTIONS 

In a few days she sent for me again, she must see me. 
That it was a matter of great importance that she should 
see me. I saw her again in the presence of the same per- 
sons, when she said : "I told you a great lie last week. Dr. 
Beers seduced me when I was a girl of eighteen, and he 
has been intimate with me ever since, until my arrest. I 
sent for you to tell you the truth and not have that lie on 
my conscience any longer". At her trial some months 
later, she testified that her relations with Dr. Beers had 
always been proper. 

I have never been able to make up my mind concerning 
Smith's relations with her. He seemed to be a good. 
Christian man, but his fascination seemed to be great. 



Case op Charles F. Feeeman. 

Charles F. Freeman and his wife lived in Pocasset on 
Cape Cod. They were good citizens. They had two 
young daughters. Some time prior to May 1, 1879, there 
was a religious revival in that place. Freeman and his 
wife became much interested, and, as time went on, much 
excited. They commenced to give up one pleasure after 
another and to practice great self-denial. 

They believed that they had been selfish and that they 
had not made sacrifices enough to the Lord. Going home 
one evening from an exciting revival meeting, they saw 
lightning in the sky, what we sometimes call heat light- 
ning, and this they interpreted as a sign to them to make a 
greater sacrifice to the Lord. They had not much in 
worldly goods, but they had read their Bible. 

They had read the story of Abraham, who had made an 
offering of his only son Isaac. How he stretched forth 
his hand and took the knife to slay his son, when the angel 



OF A LONG LIFE. 143 



of the Lord called unto him out of Heaven, and said, 
"Abraham, Abraham, lay not thine hand upon the lad". 
Remembering all this, they thought of their two little 
daughters, who were very dear to them, so they discussed 
the matter, whether or not this sign in the Heaven, which 
they had seen, meant that they should make an offering 
of one of them. But which should it be? They loved 
the younger, little Edith, the better, so they must give her 
up, as that would be the greater sacrifice. 

On reaching home, they prayed over it and went to bed, 
but they could not sleep. Here was a clear sign out of 
Heaven, a demand from God Almighty, to make an offer- 
ing of this best beloved child. 

The father got up, went into the next room, where the 
innocent children were sleeping, took the eldest daughter 
in his arms, without waking her, carried and put her in 
the bed with the mother. Then he went into the kitchen, 
secured the butcher knife, and returned to the bed room 
where little Edith was sleeping soundly. 

He turned down the bed clothes and opened the night 
dress about and above the heart. He raised the knife high 
in the air, and brought it down slowly, near the child's 
body, hoping to hear the voice of the angel of the Lord, 
crying, "Hold" ; but no voice came. He said to himself, 
"Am I unfaithful to my God; am I unwilling to obey 
his commands". He raised the knife again, and hearing 
no voice to stay his hand, he plunged the knife into the 
heart of his daughter, killing her instantly. She and the 
bed clothes were covered with blood. He at once got into 
the bed, took the child in his arms and remained there 
until morning. He then dressed himself, went to the 
neighbors, telling them what he had done, and inviting 
them to come on the morning of the third day and see his 
daughter rise and ascend into Heaven. The neighbors. 



144 SOME KECOLLECTIONS 

who had not taken the revival so seriously as he had, 
called a constable, and Freeman was taken to jail as a 
murderer, to his great surprise. 

Subsequently Freeman was indicted for murder, 
brought before the court, and it appearing that he was 
still insane, it was ordered that he be committed to the 
Danvers Insane Hospital, until the further order of the 
Court. 

After I became Attorney General in 1883, the superin- 
tendent of the hospital informed me that Freeman had 
become sane, and had reasoned himself out of his insani- 
ty; and the superintendent was of the opinion that Free- 
man would never be insane again. 

The superintendent would introduce Freeman to an 
inmate who believed he was Jesus Christ. Then he 
would say, "!Row Freeman, you know that man is not 
Jesus Christ. He is crazy just as you were when you 
killed your child". Another inmate would claim to be 
God, and the superintendent would say to Freeman, 
"That man thinks he is God, but you and I know that he 
is not, he is insane just as you were when you believed the 
Almighty had commanded you to kill your child". 

After some months. Freeman became sane, and then 
realized for the first time his great loss in little Edith. 
He soured on religion. It had caused him to kill his child. 
He became an infidel and has remained such ever since. 

Freeman was tried December 5, 1883, before the Su- 
preme Judicial Court at Barnstable, Chief Justice Mor- 
ton and Justice Field presiding. E. J. Sherman, Attor- 
ney General, and H. M. Knowlton, District Attorney, 
representing the Commonwealth, and A. W. Boardman 
and Charles A. Taber, representing the prisoner. 

The government proved the killing as before stated, 



OF A LONG LIFE. 145 



then put on two expert physicians, who expressed the 
opinion that Freeman was insane at the time. 

The defence introduced two experts who testified the 
«ame way. The attorney for the defence argued that the 
jury should return a verdict of not guilty by reason of 
insanity. In my argument I made the same claim. 

The Chief Justice in behalf of his associate and him- 
flelf advised the jury to return such a verdict, but it took 
the jury four hours to acquit, by reason of insanity. 

Freeman was committed by order of the Court to the 
same hospital for life. Some four years afterwards, the 
Governor and Council, becoming satisfied that Freeman 
would not become insane again, ordered his discharge. 

He and his wife and daughter then went west and when 
last heard from they were well and leading the lives of 
good citizens, but confirmed infidels. 

Case of the Housatonic Railroad Company. 

While I was Attorney General, Hon. Thomas Russell, 
Chairman of the Board of Railroad Commissioners, for- 
merly a Justice of the Superior Court, Collector of the 
Port of Boston, Minister to Venezuela, etc., came to me 
to prosecute the Housatonic Railroad Company for vio- 
lation of the Acts of 1885, Chapter 338. I directed 
Andrew J. Waterman, District Attorney of the Western 
District to commence a suit in behalf of the Common- 
wealth against said company. It was afterwards tried in 
the Superior Court, and judgment rendered for the plain- 
tiff. It was carried by exceptions to the Supreme Judi- 
cial Court. I commenced to study the case and prepare 
a brief for argument in that court. 

The statute had been passed upon the recommendation 
of the Railroad Commissioners, and the bill I think was 



146 SOME BECOLLECTIONS 

drawn by Judge Russell, its chairman. I knew that the 
defence was to be that the statute was unconstitutional. 
After a careful examination of the decisions of the Su- 
preme Court of the United States, I became satisfied that 
under those decisions the case could not be maintained. 
I finally told Judge Russell to what conclusion I had 
come. He was very much in earnest, as it was his pet 
statute and his pet case. We argued the case for some^ 
days with a good deal of earnestness on both sides. I 
finally said to Judge Russell this discussion has been and 
will be of great use to me in preparing my brief and 
arguing the case before the Supreme Court. 

After some days, he came to me and said, "I have not 
been able to convince you, that we have a case that can 
be maintained in law, and I do not believe that you can 
argue it as well as you could if you believed in it. Da 
you" ? I replied, "I do not know, but certainly I shall 
give the Court all the arguments and cite all the authori- 
ties which you have given me, and do the best I can to 
maintain the suit". I saw he was unhappy and dissatis- 
fied on account of the opinion which I had expressed, tO' 
mt, that the action could not be maintained. 

He said further, "This is my statute and practically 
my case, and if it fails, the laugh will be upon me, and it 
will injure my standing as a lawyer and as Chairman of 
the Board. Are you willing that I should see the Governor 
and Council and obtain permission to employ other 
counsel" ? "Certainly", I replied. Soon after, on the 
same day, the Governor sent for me. He told me of Judge 
Russell's request, and that the Judge wanted to employ 
George F. Hoar. He also asked me two questions: — one, 
had I any objections to other counsel being employed,, 
and two, did I think Mr. Hoar was the best man to em- 
ploy. I answered the first question in the negative, and 



OF A LONG LIFE. 



147 



as to the second question, I said, "George F. Hoar is an 
able lawyer, and if he will give sufficient time to the 
study of the question involved, he will ably represent the 
plaintiff. But what I fear is, that being a United States 
Senator, overcrowded with work, that he cannot and will 
not make himself thoroughly familiar with all the de- 
cisions of the Supreme Court of the United States bear- 
ing upon this subject". 

Mr. Hoar was employed and argued the case for the 
plaintiff. Justice Dewey of Great Barrington, after- 
wards Justice of the Superior Court, argued the case for 
the defendant. The Supreme Court decided the case for 
the defendant. 

(See opinion by Chief Justice Morton in Common- 
wealth vs. Housatonic Kailroad Co., 143 Mass. Keports, 
264.) 

The Chief Justice subsequently told me, that Dewey 
made a very able argument, but that Mr. Hoar had not 
familiarized himself with the cases and could not answer 
the arguments of Mr. Dewey. 

Judge Dewey afterwards told me, that he bought a 
full set of United States Keports, and devoted several 
months to the study of the cases bearing upon the subject 
so that he could quote them from memory. He was ap- 
pointed by Governor Robinson a Justice of the Superior 
Court, influenced somewhat, on account of the ability 
shown in this case. 

Judge Russell was greatly disappointed at the result, 
but said good naturedly to me, "I might as well have 
taken your opinion in the first place. I was much dis- 
turbed and aggrieved at your opinion, at the time, but it 
seems that both our Supreme Court and the Supreme 
Court of the United States have concurred in that 
opinion". 



CHAPTER IX. 



AS JUDGE OF THE SUPERIOR COURT. 



GOVEENOE OlIVEE AmES. 

Oliver Ames was elected Lieutenant Governor in 1882 
at the same time that I was elected Attorney General. 

I did not know him personally before that campaign. 
From that time on until his death, in 1895, our relation- 
ship became more friendly and intimate. 

While building his new house on the comer of Com- 
monwealth and Massachusetts Avenues I went often, at 
his request, to observe its progress. After it was com- 
pleted and his family commenced to occupy it, I spent 
many nights there. He called one of the rooms "Sher- 
man's room". I had great regard for him, — he was a 
lovable man, always carrying about with him a great 
amount of sunshine. This feeling seemed to be recipro- 
cated. 



Appointed Judge. 

He was elected Governor in the Fall of 1886, and in- 
augurated January, 188Y. 

September 7th, 1887, Chief Justice Morton of the Su- 
preme Judicial Court sent for me, and handed me the res- 
ignation of Mr. Justice Gardner of that court, saying I 



OF A LONG LIFE. 149 



wish you would place this resignation in the hands of the 
Governor as soon as possible, and tell him that we need a 
new Justice as soon as he can conveniently appoint one. 

The Governor and Council were at Springfield and were 
coming to Boston that afternoon. I went to Worcester^ 
boarded the train which was bringing the Governor and 
Council to Boston, and presented the resignation with the 
request of the Chief Justice to the Governor. 

The Governor stated that upon arriving in Boston the 
Governor and Council would hold a meeting and he would 
nominate a Justice. "Who do you think I am going to 
nominate" ? said the Governor. "I cannot guess", was the 
reply. "I am going to nominate you", said the Governor. 
"I would not accept it", said I, "for two reasons, first, I 
am not qualified for the position, and secondly, I would 
not take it, if I was". He then asked me if he promoted 
Mr. Justice Knowlton (now Chief Justice Knowlton) of 
the Superior Court, would I accept the position vacated 
by his appointment ? I replied that I would like to con- 
sider that question. 

Mr. Justice Knowlton was nominated on that day and 
confirmed on the 14th. I was nominated to the vacancy 
on the 14th and confirmed on the 21st. 

The following correspondence took place: 



Commonwealth of Massachusetts. 

Executive Department, 

Boston, Sept. 8, 1887. 
Hon. E. J. Sherman^ 

Attorney General. 
Dear Sir: I am a believer in civil service reform and 
promotion for merit. As you are aware I have nominated 
Mr. Justice Knowlton of the Superior Court of this Com- 



150 SOME RECOLLECTIONS 



monwealth to the vacancy caused by the resignation of 
Mr. Justice Gardner of the Supreme Judicial Court. 

For five years you have served the Commonwealth 
faithfully and satisfactorily as Attorney General, and to 
you, if any one, should come promotion. I therefore 
tender you, if you will accept it, when the time comes, 
for its formal offer, a position upon the bench of the Su- 
perior Court when it shall have been vacated. 

Hoping that you will find it agreeable to do this, and 
that in this your valuable knowledge of the law and your 
eminent ability as a jurist will be permanently secured for 
the use and benefit of your fellow citizens, 
I am yours most sincerely, 

Oliver Ames. 



Attorney General's Department, 
Commonwealth Building, 

Boston, Sept. 14, 1887. 
To His Excellency, 

Oliver Ames, 

Governor. 
Dear Sir: I have received your letter of the 8th inst. 
tending me the position of Justice of the Superior Court 
in place of Mr. Justice Knowlton promoted. 

Were I to serve out my present term as Attorney 
General, I should have then served the Commonwealth 
continuously as District Attorney and Attorney General 
for a period of over nineteen years. 

The people have apparently approved my administra- 
tion of those offices by repeated elections, and it is exceed- 
ingly gratifying to me to know that your Excellency 
believes me worthy of further service. I have decided to 
accept your proffer, and, if I receive the appointment, it 
will be my endeavor to serve the State to the best of my 
ability. Thanking Your Excellency for the kind words 
of your letter, I remain, 

Tours most respectfully 

Edgar J. Sherman. 



OF A LONG LIFE. 151 



Attorney General's Department, 

Commonwealth Building, 

Boston, Oct. 1, 1887. 
'To His Excellency, 

Oliver Ames, 

Governor. 
Dear Sir: Having accepted your appointment as an 
Associate Justice of the Superior Court, I hereby resign 
the office of Attorney General of the Commonwealth. 

Please accept my sincere thanks for your uniform kind- 
ness and courtesy. 

Very respectfully, 

Your obedient servant, 
Edgar J. Sherman. 

Commonwealth of Massachusetts, 
Executive Department, 

Boston, Oct. 1, 1887. 
Hon. E. J. Sherman, 

My Dear 8ir: I hereby accept your resignation of the 
office of Attorney General, which you tender this day. 

With a feeling of satisfaction that the Commonwealth 
is still to have the benefit of your valuable services, I am 

Tours sincerely, 

Oliver Ames. 



Death of Governor Ames. 

Oliver Ames held the office of Governor, 1887-8-9. 
Although regarded as rich, he owed a large amount of 
■money. The panic of 1893 was a severe trial to him, and 
he came out of it without serious loss, but with impaired 
health. At his request I wrote his will, N^ovember 4, 
1889. In the winter of 1894-5 he went south, but re- 



152 SOME EECOLLECTIOISrS 

turned home in April, his health being in an alarming 
condition. He telegraphed to me at Lawrence on Satur- 
day night, to come and see him at once. I asked if Mon- 
day would not do. He replied that he might not be alive 
at that time. I came at once. He asked me to make a 
codicil to his will, and I was named as one of the executors 
and trustees. 

The Governor lived until October of that year (1895). 

Since his death, I have served as one of his executors 
and trustees. 



Judicial Services. 

I commenced my services as Justice of the Superior 
Court at the October Criminal Session in 1887, at Law- 
rence. It was to me an exceedingly pleasant session. 

At every session which I have had since, there has been 
something, or some case, out of the usual run. I wish now 
that I had kept a diary of such cases. As it is I will re- 
fer to a few such cases as I recall them. 



A Bright Criminal. 

While holding a criminal session of the Superior Court 
in Lowell, a man by the name of Moore (I think), had 
pleaded guilty to two counts or two indictments for steal- 
ing silver from two different houses in Somerville. 

He was asked by the clerk of court, if he desired to say 
anything to the Court about his sentence. He replied 
that he had sent a letter to the Judge. Thereupon, I was 
handed a letter from the prisoner, which I examined. It 
was a well-written letter pleading for leniency of sentence. 



OF A LONG LIFE. 153 



Two words were misspelled, but I could not tell whether 
the poor spelling was intentional or not. 

I commenced to ask him questions concerning his past 
life, occupations, etc. He exhibited unusual brightness 
and cunning. As I became interested in him, the sheriff 
stood up and said, "I think I ought to tell your Honor 
that while this prisoner was in jail at East Cambridge, 
he made some very fine handcuff keys out of an old case 
knife". 

I said to Moore, "What do you say to that" ? He re- 
plied, "If they found any handcuff keys in my cell, I did 
not make them". I said to the sheriff, "Please have your 
officer at the jail come here in the morning". I wanted 
a little time to look the prisoner over, as I suspected that 
he was a "professional". 

The next morning, an officer from East Cambridge took 
the witnesss stand and testified that on Sunday morning, 
while the prisoner was in jail, he heard filing on one of 
the corridors. Creeping up near the cell, he saw the 
prisoner filing something. Upon going into the cell, he 
could not find any file, but he found an old case knife and 
the keys which were produced in court. The keys showed 
excellent workmanship. The prisoner cross-examined the 
witness, showing ability in that direction as well as fa- 
miliarity with courts. 

I became satisfied that the prisoner was a professional 
burglar, and an Englishman. If I had sentenced without 
finding out anything about him, I should probably have 
given two or three years in the house of correction; but 
believing him to be a "professional" and a dangerous man 
to be at large, I sentenced him to seven years in the state 
prison. 

I told the sheriff, when he took the prisoner to the state 
prison, to present my compliments to the warden and tell 



154 SOME KECOLLECTIOlSrS 

him that I did not believe he would be able to keep the 
prisoner a great while, as in my opinion he was a profes- 
sional burglar and a fine mechanic, and would be likely to 
break out of prison. 

When the sheriff returned, he informed me that he had 
delivered the warden my message, that the warden said, 
"Tell the judge not to worry; I think I can keep him". 

The case passed from my mind until some six months 
afterwards, when the newspapers announced that Moore 
had escaped from the prison. Some time afterwards, I 
met the warden at the Loyal Legion. He said, smiling, 
"The joke is on me. N^ow do not laugh, but let me tell 
you how he got away. I put him in a cell which was in 
sight of the officer's position all night. He first made keys 
to his cell doors, to the door into the kitchen, and from the 
kitchen to the yard. That was a comparatively easy mat- 
ter for a mechanic like Moore; but the trouble for him 
was to overcome the bar, which drops do^vn over the arms 
which come out from the door of each cell. 

The prisoners come in from the shops and are marched 
in single file, in charge of an officer, enter their cells 
on one side of the corridor, and then the cell doors are 
closed and locked. If they are all in, the lever, or over- 
head bar, is let down, fastening all the cells on that side. 
If one prisoner on that side of the corridor was not in, 
then it was the duty of the officer to remain there looking 
down the front of the cells, until the absent prisoner came, 
and then lock them all in and put down the bar. 

Moore managed to have some friend late. After being 
locked in himself, he took his false key, unlocked the door 
of his cell, went out and relocked it, and as the officer 
walked by the end of the corridor, he went around the 
other end, so that when the absent prisoner came, all were 
locked in and secure, except Moore, who played hide and 



OF A LONG LIFE. 15{ 



seek with the officer. Moore being out of his cell, had all 
night to get away, and he improved it". 

"But", said the warden, "I shall get him again". I 
replied that I did not think so, as he was an Englishman 
and had gone to England. 

This was ten years or more ago, and the prisoner has 
not yet been captured. 

Sentence of John C. Sanboen, Superintendent of 
THE Plymouth Division of the N". Y., !N". H. &. H. K.K. 

While holding court in Plymouth County, Sanborn, the 
superintendent and chief of the railroad police, and three 
section foremen, were brought before the court for sen- 
tence upon a charge of having created a riot in the town of 
Abington. They had all previously pleaded guilty, or 
rather that they would not contend with the Common- 
wealth. 

The District Attorney moved for sentence. Their 
counsel, the counsel of the railroad, asked to have 
the case put on probation, and if this could not be done, 
that a fine be imposed. 

The facts appeared as follows: — 

An electric railroad had built its tracks up to the tracks 
of the 'Nev7 York and ^ew Haven Railroad on either side 
and proposed to cross the railroad tracks at grade, having 
previously obtained a license so to do from the authorities. 

The New York and !N'ew Haven Railroad Company had 
filed a bill in the Supreme Judicial Court, asking it to 
restrain, by injunction, the electric company from build- 
ing its road across their tracks. After a hearing before 
Mr. Justice Knowlton of that court, that justice ruled 
that the electric company had a right to so crosB, and 



156 SOME EECOLLECTIONS 

refused the injunction. Thereupon, the electric company 
attempted to construct their track, calling on the officers 
of the law to preserve order. The said superintendent and 
chief of the railroad police came there with 200 or more 
Italian laborers, armed with pickaxes and shovels, and 
created a riot and street fight, assaulting many persons, 
including the peace officers, causing the windows of the 
post-office to be broken, etc., etc. Many persons were in- 
jured during the riot. 

Civil actions were brought against the I*^ew York and 
N^ew Haven Railroad company by these persons injured. 
The company had paid out many thousand dollars and 
had settled with all persons injured, and those persons 
signed a petition to the court in favor of leniency towards 
the accused. The District Attorney stated that he felt he 
had performed his duty by making the Court acquainted 
with all the facts and moved for sentence, leaving the 
Court to determine what that sentence should be. 

I took the case under consideration. Upon the coming 
in of the court, at a subsequent day, the five defendants 
stood at the bar to receive sentence. 

The Court stated that he regarded this as an important 
matter to be decided as affecting the proper administra- 
tion of the criminal law. Here was a clear case where the 
superintendent of a great railroad corporation had taken 
the law into his own hands and created a riot, to prevent 
another company from doing something which a judge 
of a Supreme Court had just decided it had a lawful 
right to do, the superintendent calling to his aid several 
hundred ignorant Italian laborers and directing them to 
go with their weapons and commit an assault on the peace 
officers of the Commonwealth. It is a wonder that many 
persons were not killed. Such a case should not be put 
on probation. A fine would be paid by the stockholders 



OF A LONG LIFE. 157 



of the corporation who are not guilty. The sentence of 
the Court was that the superintendent and chief of police 
be punished by imprisonment in the house of correction, 
four months each; that the three section foremen be pun- 
ished by imprisonment in the same institution two months 
each. 

That evening President Clark of the railroad came from 
Hartford in his private car to Plymouth. I had known 
Mr. Clark quite intimately for some time. He appealed 
to me to help secure the release of these men. He said 
they were not to blame, that they had only obeyed the 
order of their superior officers. I declined to aid him. He 
asked how he could secure their release. I told him he could 
apply to the Governor and Council for a pardon. He asked 
if I thought he could obtain a pardon for them. I replied 
that I did not know; a great railroad corporation could 
sometimes "acomplish wonders". 

Finally he said, "Judge what would you do if in my 
place". I replied, "Well, I will tell you what I think I 
would do. I would go to the jail and tell these men, I 
have got you into trouble. You will have to serve your 
sentences; while you are here your pay will be doubled". 

"If these men serve their sentence, sometime in the 
future, when you have a strike of these Italians on your 
road, and they create a riot and destroy your property, 
you will be in condition to ask the Court to punish them. 
But if these educated Americans are not punished, can 
you expect to have ignorant Italians punished for com- 
mitting a like offense" ? Mr. Clark's reply was, "Your 
advice may be good, but I cannot follow it, I must get 
the men out if I can". 

Subsequently a petition was presented to the Governor 
and Council for a pardon. After a long hearing, the Coun- 
cil voted by a majority of one against granting it. A 



158 SOME EECOLLECTIONS 

new petition was presented after the sentences of the 
three section men had expired. There had in the mean- 
time been a change in the Council, by one going out and 
one coming into oflSce. This time the Council voted in 
favor of granting the petition by a majority of one. The 
matter was then heard by Governor Greenhalge, who re- 
fused to grant the pardon. 

There has been a feeling among some of our citizens 
that only the small rogues or law breakers suffer punish- 
ment. This case has proved to be an object lesson. Since 
a superintendent of a railroad, an educated man, and the 
chief of the railroad police (who some years before had 
been an officer, the turnkey of this same house of correc- 
tion), had both put on the prison uniform and served sen- 
tence, the public opinion seems to have undergone a 
change. 

I 
Case of McCaethy. 

At the same session of court at Plymouth, two men were 
tried for breaking and entering a gTocery store in Brock- 
ton and stealing therefrom. 

One man's name was McCarthy and, as I looked at 
him, I thought I had seen him as a prisoner while I was 
district attorney or since I became a judge. This feeling 
grew upon me and I felt quite sure he belonged in Lynn. 
After he was convicted, when the matter came up for sen- 
tence, an honest lawyer in the old fashion style of dress 
(black) addressed the Court. He stated that he had been 
employed by McCarthy, who was a man of character and 
standing, never having been suspected of breaking the 
law before, but had met the other prisoner, who was an 
old offender, and all that could be said against McCarthy 



OF A LONG LIFE. 159 



was, that he had gotten into bad company; that he had 
only met the other prisoner on the night of the breaking 
into the store and was present, although taking no part in 
the crime. The lawyer asked that his client be put upon 
probation. At this, point, I asked, "Does your client au- 
thorize you to make these representations" ? "Yes, cer- 
tainly", said the attorney, "but why does your Honor 
ask" ? "Because McCarthy and I are old acquaintances. 
I think you better talk with him". The lawyer went to 
the dock, and after a hasty consultation with his client, 
again addressed the Court. "I beg your Honor's pardon. 
My client informs me that twenty years or more ago, 
while you were district attorney, he was convicted and 
sentenced to the reformatory". 

The Court. "Is that all he tells you ? I think you had 
better talk with him again". 

The Attorney. "Yes, he says that three years after- 
wards, he was convicted of breaking and entering a store 
in Lynn, and sentenced to two years in the house of cor- 
rection". 

The Court. "But does he not tell you what has hap- 
pened to him since I became a judge" ? 

The Attorney. "Yes, he says that you sentenced him 
for burglary to the state prison for five years". 

The Court j^ addressing the prisoner). "Now, McCar- 
thy, do you not think it best to tell the whole story, rather 
than to have the District Attorney send to Mr. Shaw, the 
state officer, to bring in the record of all your convic- 
tions" ? 

McCarthy. "Yes, your Honor. I did not think you 
would remember me, as it is about twelve years since you 
have seen me, but when you said 'we were old acquaint- 
ances', I feared it was all up. I will now tell you the 
whole truth". So McCarthy went on and told of the num- 



160 SOME EECOLLECTIONS 

ber of times he had been in prison, and it turned out that 
in twenty years he had been in prison the greater part of 
the time. 

The lawyer was greatly mortified, and made his apolo- 
gies to the Court, and as an excuse, said the prisoner's 
mother and sister had confirmed the prisoner's story of 
innocence. I assured the lawyer that I believed him and 
he seemed somewhat relieved. 

The next day, the newspapers had an account of the 
proceeding, with glowing accounts of the Judge's great 
memory of the faces of prisoners, etc., etc. 

As a matter of fact, I was entitled to no credit. I hap- 
pened to remember McCarthy's face, and by remarking 
that "we were old acquaintances" thereby induced him to 
tell the whole story. I also felt that if McCarthy had 
been convicted when a young man and was now forty 
years old, from the nature of this crime, which showed the 
experience of a "professional", it was altogether probable 
that he had been engaged in crime since, which turned out 
to be the case. 



A Boy Witness. 

A case was being tried before me against the Boston 
Elevated Railroad, and a little boy, perhaps seven years 
old, was called as a witness. The counsel for the defence 
objected to his being used as a witness, as he was too 
young to understand and appreciate an oath, and asked 
the court to examine him and ascertain that fact. The 
boy looked frightened and as if he was about to cry. He 
took the witness stand close beside the bench. His name 

was John . I said to him in a low voice, as if 

talking confidentially, "John, do you play base-ball" ? 



OF A LONG LIFE. 161 



He replied, "Yes, Judge". He was a little short fellow, 
and I said, "I guess you play short stop". "You are right 
Judge", replied Johnnie. 

By this time all disposition to be frightened or cry had 
disappeared. I then asked him about his school, etc., and 
he showed unusual brightness. I remarked, "This boy 
will do, he is all right". 

He made one of the best witnesses called in the case. 
If I had said to him in a stern voice. "Do you under- 
stand the nature of an oath? What will happen to you 
if you tell a lie ?" as is sometimes asked in like cases, the 
boy would have broken down in a crying spell. 



Thomas Riley. 

Thomas Riley, a lawyer of some prominence in Boston, 
who had made some trouble in court, had been fined for 
contempt of court many times, came to have an experience 
with me in this way. Before I was appointed a judge, I 
happened to be in court one day, where Mr. Riley was 
trying a case before Judge Thompson. Riley having a 
weak case knew that the Judge's charge, if fair and just^ 
would have a tendency to show the weakness of his case. 

So, as it seemed to me, Mr. Riley commenced to say 
and do things for the purpose of irritating the Court. Mr. 
Riley's conduct did irritate the Judge and he showed re- 
sentment by a just reprimand with a flushed face. There- 
upon Mr. Riley smiled to the jury as if saying, "You see 
the Judge is on the other side of this case". So later 
when the Judge was charging the jury, Mr. Riley was, 
by looks and acts, keeping up the insinuation, that the 
Judge was against his client. 

I felt at the time, that the Judge was unfortunate in 



162 SOME KECOLLECTIONS 

exhibiting temper, the very thing that Mr. Riley by his 
conduct had planned to produce. 

Many years afterwards while I was holding the crim- 
inal session in Boston, where two prisoners were being 
tried upon a charge of robbery, Mr. Riley appearing for 
one and another attorney for the other, I thought he in- 
tended to have the same kind of trouble with me for the 
same purpose. 

The District Attorney called the Court's attention to Mr. 
Riley's conduct in cross-examination of a witness and ob- 
jected to it. I said in a quiet way that Mr. Riley's con- 
duct was improper, but he repeated it. 

Court adjourned in a few moments. I then called Mr. 
Riley to the bench, and said, "Mr. Riley your mode of 
cross-examination is very objectionable and it cannot be 
allowed, but I noticed a few moments ago after I had so 
stated, you kept it up". "Oh", said Mr. Riley, "it was 
an inadvertence". 

The next day he commenced to cross-examine in the 
same way, looking at the Court as if he intended to say, 
"Help yourself if you can". To make sure that I correct- 
ly interpreted the look, I said, in a mild voice, "Mr. 
Riley, we talked this matter over last evening, and I 
thought we understood each other, but you seem to be 
continuing in the same way". 

"Yes", said Mr. Riley, "you said something to me about 
it in private, but I prefer, if you have anything to say to 
me that you will say it publicly, in open court". I said, 
in the same quiet way, without raising my voice, "I 
think Mr. Riley we now fully understand each other, 
you may proceed with your cross-examination". He did 
proceed, but going on in the same way, except in a more 
objectionable way, at the same time looking defiantly at 
the Court. After he had gone on long enough to make 



OF A LONG LIFE. 163 



sure that he intended to disregard my order and defy 
me, I said, "Mr. Sheriff, we will take a recess of a few 
minutes during which time you will notify Mr. Riley's 
client, that he will be obliged to secure other counsel, as 
Mr. Riley cannot represent him any further". This 
seemed to be a new turn in affairs and out of the order 
of the Court's fining the lawyer for contempt. 

When our recess was over, the prisoner stated that he 
had no more money to pay another lawyer, as he had paid 
all he had to Mr. Riley. I stated to him, that as he had 
no counsel, it was the duty of the court to see that his 
rights were guarded and protected. Then I said to the 
District Attorney, "You will proceed with the trial". 
Soon Mr. Riley left the court room and the counsel for 
the other prisoner appeared for both. 

The second morning after, Mr. Riley came into court, 
and I said good naturedly, "Good morning". He came 
to the bench and said to me, "Judge, I do not know my 
status in this court, I have several cases on the short-list". 
I replied, "The slate is all clear, my order only including 
the case on trial". He tried many cases before me after 
that, but always conducted himself with entire propriety. 
We became quite good friends. He learned that clients 
would not employ a lawyer who was liable to be sent out 
of court. 



Teibute to Chaeles Peekins Thompson, Justice of 
THE Supeeioe Couet feom 1885 TO 1894. 

At a session of the Superior Court in Salem, June 29, 
1894, Justices Sherman, Lilly and Sheldon (successor of 
Judge Thompson) being present, a memorial (prepared 
by a committee of the bar previously appointed) was pre- 



164 SOME RECOLLECTIONS 

sented to the court. Remarks were made by William D. 
Korthend, Elbridge T. Burley, Daniel Saunders, Henry 
P. Moulton, William H. Niles, and Frank C. Richardson. 
After which Justice Sherman replied as follows: — 

Brethren of the Bar: — 

When I came to this bar in 1858 I first met Mr. 
Thompson, who had preceded me, having taken up his 
residence in Gloucester the year before. From that time 
until 1868, when I was elected to the office of district 
attorney, I met him occasionally. For the next fourteen 
years we met frequently in the civil and criminal courts, 
more frequently in the latter, as he had a large docket in 
that court. 

After I became attorney general, in 1883, we met often^ 
especially in the summer months, I some years prior, hav- 
ing taken up my residence in Gloucester during the sum- 
mer. 

He was appointed to the bench in 1885, and I in 1887, 
after which time our relations were very intimate. It is 
pleasant to remember that in the great number of cases 
we tried, as opposing counsel, there never was an unpleas- 
ant word between us. 

I was once asked by former justice of this court, only 
slightly acquainted with Mr. Thompson, why it was that 
I manifested such a great respect for and confidence in 
him. I answered, "Because he is such a good fellow and 
so honorable in his practices, — if he should tell me that I 
made an agreement a year ago about the disposition of a 
criminal case, of which I had no recollection, I have such 
implicit confidence in his integrity, I should carry out the 
agreement according to his understanding". 

As a lawyer he had a good degree of success, not in a 
financial sense, but in giving to a large number of his 



or A LONG LIFE. 165 



fellow citizens the best of advice without charge or com- 
pensation, and in giving to a large clientage great ability 
and faithful services, with moderate charges. 

He will be gratefully remembered by the citizens of 
Cape Ann as a lawyer who did not stir up strife, incite 
neighbors against neighbors, nor encourage litigation; he 
was a genuine peacemaker, and literally kept the attor- 
ney's oath, — "He would do no falsehood, nor consent to the 
doing of any in court; he did not wittingly or willingly 
promote or sue any false, groundless or unlawful suit; he 
delayed no man for lucre or malice ; but he conducted 
himself in the office of an attorney within the courts ac- 
cording to the best of his knowledge and discretion, and 
with all good fidelity as well to the courts as to his 
clients". 

Judge Thompson, as a member of the legislature and 
of congress, established a reputation as a man of ability 
and integrity. 

Mr. Justice Thompson was a popular judge; naturally 
such, with his genial disposition, pleasant ways, ready wit, 
and love of anecdote, he could not be otherwise ; he carried 
about with him wherever he went a large amount of sun- 
shine. The lawyers, court officers and jurors, were glad to 
meet him in or out of court. With his associates upon the 
bench he was considerate and companionable ; 

"l^one knew him but to love him, 
ITone named him but to praise". 

He possessed a sensitive conscience; he wanted to do 
right, administer exact justice, and he was determined to 
do it in such way, and with such care, as to leave no doubt 
in the mind of any person as to his purpose and motive. 

The pleasantest and happiest years of his life were 
those immediately preceding his last illness. He thorough- 



166 SOME EECOLLECTIONS 

ly enjoyed his position and work upon the bench ; he had 
a happy home, with a dutiful, affectionate and devoted 
wife ; his son had passed the anxious years of boyhood into 
manhood and successful professional engagement; and a 
loving daughter, after long and anxious years of illness, 
had been restored to health, and everything seemed pro- 
pitious for the future, and his friends expected he would 
reach the age of four score years. But what seemed to us, 
who cannot understand the mysteries of life and death, 
a cruel fate, decided otherwise. He was cut down in the 
midst of his usefulness by a fatal disease, which preyed 
upon both body and mind, until it so weakened the latter 
that life to him seemed a great burden, too great finally to 
be endured longer. And as we think how terribly he 
suffered in those last days, of the agony of those last 
hours, can we say that perhaps, after all, it was not best ?* 

While we shall miss him and mourn his loss, we may 
be comforted with the thought of how much better this 
part of the world is on account of his life and example. 
He did much to make the world better, to fill it with sun- 
shine and happiness, and he has left behind him a 
reputation for honesty and integrity as firm and rugged 
as the rocks of the Cape where he dwelt. 

As I go to my summer home by the sea, where he so 
often visited me, I shall feel constantly, 

"He will come no more. 
That friend of mine whose presence satisfied 

The thirst and hunger of my heart. Ah, me ! 
He has forgotten the pathway to my door. 

Something has gone from Nature since he died. 
And summer is not summer, nor can be". 

'Judge Thompson committed suicide. 



OF A LONG LIFE. 



167 



In the year 1901, the Boston Glohe published a fulsome 
article with a good picture of myself as follows :— 

"Taught District School. 

Judge Edgar J. Sherman, Now Leader of Massachusetts 
Bench and Bar. 

Judge Edgar J. Sherman of the Superior Court is an- 
other prominent Bay State character who taught school 
to earn the money which enabled him to study law. A Ver- 
monter by birth and education, he was sent to the Wesley- 
an seminary. After graduating from this institution, he 
taught school on Cape Cod, and in 1855, at the age of 21, 
he began studying law, and in due time he was admitted 
to the bar in this state. 

In 1859 he was appointed clerk of the Lawrence 
police court, and in 1861 he resigned this position to be- 
come a volunteer soldier in the war of the rebellion. He 
enrolled as an enlisted man, but was soon elected captain 
in the 48th regiment from this state. He served under 
General Banks and was brevetted a major for gallant and 
meritorious services at the second attack on Port Hudson, 
June 14, 1863. 

At the expiration of his term of enlistment he returned 
to Lawrence, but on the threat of the rebels to raid Wash- 
ington, Captain Sherman gathered together a company 
of volunteers and went to the front the second time as cap- 
tain of the company in the famous old 6th Massachusetts. 

In 1865 he was elected to the house of representatives 
and returned the following year. For some years after 
the war he was prominent in militia circles, and when he 
retired he held the position of judge advocate general. 

In 1868 he was chosen district attorney for the eastern 
district of Massachusetts, and was honored with five con- 
secutive elections, resigning to become attorney general 
in 1882. In 1887 he was made one of the judges of the 
superior court. 

Judge Sherman belongs to the same branch of the Sher- 
man family that produced Gen. W. T. Sherman and the 



168 SOME EECOI.I.ECTIONS 



late John Sherman, and many see in him the same general 
features of the former mentioned distinguished brother. 

Judge Sherman ranks as one of the most even tempered 
Justices of the Superior Court. Tall, thin and wiry, he 
moves about quickly, dispatches a deal of work in a short 
time, and is one of the most democratic justices of his 
court. He is often seen riding back and forth on his 
wheel. He is a hard worker, a great reader, and when 
practicing at the bar was regarded as an able lawyer." 

I wrote a letter to the proprietor as follows : — 

"Boston, June 15, 1901. 
Gen'l Chas. H. Taylok, 

Proprietor of the Globe. 
My Bear General: 

Some writer published in your paper on Thursday, 
with a picture of myself, a fulsome article headed in large 
letters, "Judge Edgar J. Sherman, Now Leader of the 
Massachusetts Bench and Bar" ! 

My enemies will say the article is a lie, and my most 
admiring friends will not claim it to be true. 

I am' not the leader of the bench. There are seven 
justices of the Supreme Judicial Court and the Chief 
Justice of the Superior Court, who are my seniors, and 
there are many of my juniors of the latter court, who are 
better lawyers and judges than I am. 

I never was the leader of the bar of Massachusetts, ex- 
cept in the sense that while I was attorney general I 
occupied the position as leader. 

I cannot understand why the article was published. 
Undoubtedly the writer intended to do me a kindness. I 
am not in politics or a candidate for public office. I am 
put upon the shelf, without aspiration or ambition, sim- 
ply trying to do my duty as a judge. If I was convivial, 
or in a position to justify "seeing my friends," the article 
would prove expensive. As it is, sedate gentlemen ask, 
"What does such an article cost?" Others make indirect 



OF A LONG LIFE. 169 



reference to the latest decision on punctuation*, and com- 
ment on the hour when orders for luncheon may be given. 
The late George M. Stearns once remarked, that he would 
not be obliged to behave as well as a judge had to, for 
twice his salary. 

This article is causing me much embarrassment. 

I do not feel quite safe in asking to have it corrected. 
Will you kindly, in the most severe military style, com- 
mand the writer "not to do it again" ? 

Very truly yours, 

Edgae J. Shekman". 



•Commonwealth vs. Kelly, 177 Mass. R., 221. 



CHAPTER X. 



CONTINUED JUDICIAL SERVICE. 



Contempt of Coukt Pkoceedings. 

During the December (1898) Criminal Session of the 
Superior Court at Dedham, which was held by me, Daniel 
W. Getchell, a locomotive engineer, was tried upon an 
indictment charging him with manslaughter— criminal 
negligence— in running an engine and train of cars into 
the rear end of another train at Sharon Station, killing 
Franklin W. Waters, on August 21, 1898. A heavy 
train reached Taunton on the New York, New Haven and 
Hartford Railroad. The train was there divided into two 
divisions, Getchell running the second into Boston, and 
it was his duty to so run the rear division as not to run 
into the first division. Under the rules of the road he 
was not to run by a danger signal. When he reached 
such a signal, it was his duty to stop his train and wait un- 
til the signal was changed, showing that the train m front 
had passed beyond the next signal. 

At Sharon Heights he saw the danger signal, but un- 
doubtedly thought that before he reached Sharon Station, 
the first division would be out of his way ; and so he "took 
chances", coming on at full speed until he approached the 
Sharon Station, when he observed to his horror, that 
the other train was still there. He reversed his lever and 



OF A LONG LIFE. ^^^ 



jumped off his engine, which came crashing into and run- 
ning way through the rear car, killing Mr. Waters and 
five others and injuring many passengers. 

While the case was being tried there appeared in "The 
Boston Traveler", an article containing a one-sided par- 
tisan view of the case, in favor of the defendant, winding 
up as follows:— "In either case who is to blame, certainly 
not Engineer Getchell, for he was inexperienced in the 
use of the air brake; he is not to be censured, but the 
fault lies with the road officials who allowed him to op- 
erate the train. From the evidence thus far given it is 
probable that the result will be in Mr. Getchell's favor". 
The facts were called to the attention of the Court, by the 
District Attorney alleging that the paper and article had 
a tendency to prevent a fair and impartial trial by the 
jury of said indictment against said Getchell, and which 
paper he stated was circulated about the court room, while 
said case was upon trial. The Court caused said complaint 
to be reduced to writing. It was thereupon ordered by the 
Court, that the sheriff notify Torrey E. Wardner, the pub- 
lisher and manager of said paper, to appear before said 
Court on Tuesday, the twentieth day of December, 1898, 
at ten o'clock in the forenoon, then and there to show 
cause why he should not be adjudged guilty of a con- 
tempt, m publishing said article while said cause was on 
trial, with an expectation that it might be seen by the 
Court and jury. 

On December 20, 1898, the sheriff reported to the Court 
that he had personally notified said Wardner on Decem- 
ber 16, 1898, to appear at court in compliance with said 
order of Court but said Wardner did not so appear. On 
December 21, 1898, said Wardner still not appearing, 
the Court directed that a capias be issued for his arrest. 
At five o'clock p. m. on said December 21, said Wardner 



SOME KECOLLECTIONS 



appeared before said Court and was placed at the bar to 
answer and show cause why he should not be adjudged 
guilty of contempt as set forth in said complaint as afore- 

The said Wardner then and there admitted that he was 
responsible for said publication as set forth, but claimed 
that he had a right to make such publications and that he 
<>ould not allow the Justices of the Superior Court to in- 
terfere with the freedom of the press. After fully hear- 
ing said Wardner in his defence, with the aid of counsel, 
and after full hearing and consideration, the Court found 
that the several matters hereinbefore recited, as to the 
printing, publishing and circulation of said article were 
true; that the Boston Traveler containing said article was 
circulated in the court room while said case was on trial 
and was seen by the jury or some of the jury engaged m 
the trial of said cause; and that said article was circulated 
to interfere with and prevent a fair trial by the ]ury m 
.said cause; the Court thereupon adjudged said Ward- 
ner guilty of contempt, and at the suggestion and request 
of his counsel continued said matter upon the question of 
sentence to be heard December 23, 1898, at 10 o'clock 
a. m., said Wardner personally recognizing m the sum o± 
$500 for his appearance as directed. 

December 23, 1898, said Wardner appeared with new 
counsel and had a full hearing upon the question of sen- 
tence, said Wardner still claiming the right to make the 
publication as set forth in this record, and still denying 
the right of the Court to interfere. 

Judge Sherman's Remabks at Time op Sentence. 

"I feel like saying, before sentence is pronounced, that 
the Court of course has no personal feeling in the matter. 



OF A LONG LIFE. 173 



It was my duty, as I regarded it, when the District Attor- 
ney made the complaint and called to my attention this 
article to take some action on it, and I caused that com- 
plaint to be reduced to writing and then notified the de- 
fendant through the sheriff of the article, and then sub- 
sequently when he did not appear, of course had him 
called, and then issued a capias, but he came into court 
voluntarily before the capias reached him, and then there 
was a hearing upon the question, and his attitude then 
was the same as I understand it is now, practically that 
he felt that not having been instructed about the law — 
he felt he had the right to do what he did do and did not 
purpose to have the Court interfere with the management 
of his paper. 

Now the practical question is, — I have no doubt it was 
clearly an article which would have a tendency to preju- 
dice the minds of the jury ; it was written and published 
at least while the jury had the case under consideration 
and the very article shows the writer knew it, that the 
case was being considered by the Court and jury. Of 
course the paper came out here, at what time it reached 
here is uncertain, but from the evidence which I have 
had, I am satisfied that it did reach here in time to have 
done harm to the jury, if it had been seen by them, but 
I do not think that is material. The important thing was 
the writing of such an article and circulating it where it 
would be expected that it would reach the jury. That 
paper — I do not know how large a circulation it has, but 
it is circulated here and was circulated in court, and was 
shown to the Court. The jury had the paper, and I am 
informed that they had it from the jury themselves, that 
they had the article while they were in the jury room, but 
that they took this view of it, — (evidently it did not in- 
fluence them very much) — to wit: That that was the pub- 



174 SOME RECOLLECTIONS 

lie view of the case, but that they had not the right to 
take that into consideration, as their duty was to decide 
the case on the law and the evidence as given at the trial. 
Now if Mr. Wardner had said that he was ignorant of 
the law and that he was a law-abiding citizen and that he 
was sorry that he had published such an article during 
trial and that he was prepared hereafter to be law-abiding, 
of course I should have felt, as we all must feel in this 
class of cases where we can, in either not taking any action 
or at least in taking lenient action simply for the purpose 
of informing newspaper men of their obligations. Now 
I am not aware that the courts in this Commonwealth 
have ever attempted in any way to interfere with news- 
papers, except in just such cases, where reports or edito- 
rials ure published either giving an unfair account of the 
trial or making comments during trial, so that it has a 
tendency to prejudice the jury. 

The law is, to my mind, perfectly well settled. An 
article giving a true and correct report of the trial is en- 
tirely lawful. Reporters may publish truthfully every- 
thing that takes place at the trial, but if they attempt to 
warp the proceedings, and give a false account which has 
a tendency to prejudice the trial it is within the prohibi- 
tion, or if they write editorials which have a tendency to 
prevent a fair trial, either in a civil or criminal case, it is 
within the prohibited rule. 

If that is to be alloived then no man can have a fair 
trial and the case might as well be tried upon the news- 
paper article and not upon the evidence. 

Now this case stands like this: The defendant is here. 
I have heard him in his defence, have heard all the facts 
and circumstances, and have adjudged him within the 
rule that he is guilty of contempt. Now of course the only 
question is what sentence shall be imposed. 



OF A LONG LIFE. 175 



If the defendant took the other ground that by some 
omission or mistake he did commit the offence without 
understanding the law and that he was sorry for it, and 
that he should not again in a like case offend, I should 
be very much relieved ; but evidently he thinks that he has 
a right, and he has if he wants to, to test the question. In 
other words he stands in this attitude, — "I do not mean 
any disrespect to the Court, but I will not obey the law. 
I will do as I have a mind to about it, and I will get the 
higher court if I can to change it, and if I cannot I will 
get the legislature to change the law ; and I maintain this 
attitude for that purpose". 

Now of course I must deal with him in that view, but 
leniently; the Court should never do anything vindictive- 
ly, but since he takes that attitude, I do not see that he 
leaves it open to me to impose a small fine. He compels 
me to inflict some punishment, but at the same time it 
ought to be done with moderation, because it is not the 
purpose of the law to be vindictive. 

Since the brother of the defendant called on me last 
night and talked about the matter, I have given the case 
considerable consideration, because it is not a matter that 
is personal at all, it is a matter where I am acting in a 
judicial capacity, for the Court, and of course what I de- 
sire to do is just the right and proper thing, and after 
giving the case such consideration as I have been able to, 
I have come to a conclusion which the clerk may an- 
nounce. 

Sentence. 

The Clerk. "Torrey E. Wardner: 

You have been found guilty of a contempt of court, 
after due complaint and hearing, as appears of record in 
this court. It is considered and ordered by the Court that 



176 SOME EECOLLECTIONS 

you be punished therefor, by imprisonment in the common 
jail in the County of ISTorfolk, for a period of thirty days, 
unless you are sooner released therefrom by order of 
Court by due course of law. 

Mr. Sheriff, this prisoner is in your custody, under 
sentence to the jail". 

Subsequently the following petition was filed. 

INoEroLK^ 8S. Sfpekiob Coijet. 

Dedham, December Sitting, 1898: December 31, 1898. 

The following petition of Torrey E. Wardner was filed 
in court: 

To His Honor, Mr. Justice Sherman of the Superior 
Court : 

I, Torrey E. Wardner, respectfully represent that I 
have now served more than one week of the sentence to 
imprisonment in jail for contempt of court in publishing 
an editorial in the Boston Traveler, while the indictment 
against Daniel W. Getchell was being heard before the 
Court and jury, which article would have a tendency to 
prevent a fair and impartial trial; that since the adjudi- 
cation and sentence by your Honor, I have applied to a 
Justice of the Supreme Judicial Court to be released from 
said imprisonment on habeas corpus upon the ground that 
said conviction and sentence was erroneous. After full 
hearing, Mr. Justice Knowlton refused my application 
upon the ground that that court had no authority to inter- 
fere. 

I have since been advised by my counsel, in whom I 
have full confidence, that the full bench of the Supreme 
Judicial Court would not and could not order my release 
from imprisonment, and that the only court which can 
grant such a release is the Superior Court. 



OF A LONG LIFE. 177 



I am also now convinced that the article published by 
the Boston Traveler was a violation of the law, and that 
the decision of your Honor in so deciding was correct and 
proper, and that my attitude in claiming the right to pub- 
lish such article and not allow the court to interfere was 
improper and erroneous. 

I now regret that I violated the law and maintained 
such attitude before the Court. 

I am and intend to be a law-abiding citizen and assure 
the Court that I will not again offend in this respect. 

I find that the close confinement in prison is affecting 
my health and if I am required to serve the remainder 
of the sentence I may be seriously ill. 

I therefore respectfully and earnestly pray that after 
having purged myself of said contempt, your Honor will 
order my release of the whole or some part of said im- 
prisonment. 

TOEEEY E. WaBDNEE. 

Norfolk, ss. December 30, 1898. 

Then personally appeared before me the above-named 
Torrey E. Wardner and made oath that the statements 
above made by him are true. 

Before me, 

G. Philip Wakdnek, 

[Notary Public. 

And the following order was made thereon: — 

Commonwealth of Massachusetts. 

NOEFOLK, ss. SUPEEIOE COUET. 

Dedham, December Sitting, 1898. 
In matter of petition of Torrey E. Wardner to be re- 



178 SOME KECOLLECTIONS 

leased from further imprisonment for the contempt of 
which he was adjudged guilty and sentenced. 

After due consideration, the Court being satisfied that 
the petitioner has purged himself of the contempt of 
which he was adjudged guilty, and the only object of the 
Court in said adjudication and sentence having been ac- 
complished, to wit, of attempting to secure the litigant 
fair and impartial trial, it is ordered that said Torrey E. 
Wardner be forthwith released and discharged from 
further imprisonment. 

By order of court, this thirty-first day of December, 
1898. 

R. B. WOKTHINGTON, 

Assistant Clerk. 
A true copy of record — Attest: 

R. B. WORTHINGTON, 

Assistant Clerk. 

Getchell was found guilty of manslaughter, and sen- 
tenced to two years in the house of correction. 

I did not know Mr. Torrey E. Wardner personally be- 
fore these preceedings were commenced, although I was 
acquainted with his father, a very respectable citizen liv- 
ing in Lawrence, and I knew his brother, G. Philip 
Wardner, a reputable attorney practising in Boston. 

I did not want to sentence Wardner to imprisonment, 
and hoped that he would so act that it could be avoided, 
but I was informed that he thought, if he was imprisoned, 
he would be regarded as suffering martyrdom for stand- 
ing up for free and independent press, and thereby in- 
crease the circulation of his paper. 

I sent a very judicious officer. Sheriff Endicott, to call 
upon Wardner at the Traveler office, and politely asked 



OF A LONG LIFE. 179 



him to come to court and explain how the article came to 
be published. The sheriff's report of the interview was 
quite interesting. 

He had some difficulty in getting admitted to the 
Sanctum Sanctorum. The sheriff. "Judge Sherman 
wanted I should see you and request that you come to 
court at Dedham and explain how the article on the 
Getchell trial came to be published" ? Wardner. "Well, 
I shall not go". 

The sheriff. "I think you better — of course if you do 
not, probably I shall have to come again with a capias 
to arrest and bring you to court". 

After considerable conversation, Wardner, still saying 
he would not go to court, finally added, "I am willing to 
wager the value of this newspaper, that they cannot get 
me into jail". 

The Sheriff, who sometimes comes near stuttering said, 
"Well, if, if, it would be pr-proper for me to bet, I should 
be willing to take it, pro-provided you keep up this at-at- 
attitude". 

I^one of the newspapers seemed to sympathize with 
Wardner, as they evidently thought the court had given 
him every reasonable opportunity to escape punishment, 
and finally they were very much disgusted with him, be- 
cause after manifesting such courage; willing to suffer 
martyrdom, he "cried baby" so quickly to obtain his re- 
lease. 

It ought to be stated that Wardner was a large, good, 
healthy looking man — what might be called a high liver, 
smoking strong cigars and many of them in the course 
of the day. He thought he could go on in the same way, 
having the same high living in jail and editing his paper 
from his cell. After sentence, he asked the sheriff to take 



180 SOME EECOLLECTIONS 

him to Boston to make arragements for his thirty days 
absence. 

The sheriff. "I have no right to, my precept commands 
me to take you to jail". Wardner. "How about writing 
and receiving letters" ? Sheriff. "You can write and re- 
ceive one letter a week". Wardner. "How about tobac- 
co" ? Sheriff. "It is not allowed". Wardner. "Can I 
have my meals sent into the jail" ? Sheriff. "We allow 
fruit to be sent to the prisoners once a week, but nothing 
else. You will have to subsist on the prison fare. We 
can show no distinction in the treatment of our prisoners. 
They must all be treated alike — no high, no low, no rich, 
no poor prisoners — they are all on the same level. Of 
course you would not recommend having it otherwise". 

After a full day's imprisonment, he began to think he 
could not endure it, and sent to his brother to get him out 
at any cost. The brother told him that there was but one 
way, and that was the one, he, the brother, had first ad- 
vised, to say that he had done wrong and that he would 
not do it again ; that if he, the prisoner, was willing to do 
that, he, the brother, would try and obtain a release. 

Of course, Wardner was afraid, if he did what the 
brother advised, his fellow editors would laugh at him, 
but that he finally concluded was not as bad to stand as 
the imprisonment. 

A few days after this case of contempt, the Supreme 
Judicial Court decided the cases of Telegram ISTewspaper 
Company vs. the Commonwealth, and Gazette Company 
vs. the same — the liability of corporations for contempt. 
(See 172 Massachusetts Keport, 294.) 

It was stated some time afterwards that the reason for 
Wardner's publication of the article concerning the 
Getchell trial, was because he had had trouble with the 
railroad, that the company had refused him a pass. I 



OF A LOXG LIFE. 181 



never investigated that question, and therefore can say 
nothing concerning the truth of the statement. 



Some Unpleasant Experiences as a Judge. 

At the September session of the Superior Court (1899), 
at Lowell, Judge Lilley was assigned to preside, I during 
the same time was to preside at Lawrence. 

Judge Lilley requested me to exchange sessions with 
him, as there were several cases for trial on his list be- 
tween neighbors of his. I consented and went to Lowell. 

The case of Jefferson against George R. Rich- 
ardson, the former being a son-in-law of the latter, was 
tried. Mr Richardson was the leading lawyer of Middle- 
sex County. His daughter had obtained a divorce from 
Dr. Jefferson, the plaintiff. Charles Cowley was counsel 
for the plaintiff and Fred !N". Wier was attorney for Mr. 
Richardson — Cowley and Richardson were not on good 
terms. There had been a long, unpleasant quarrel be- 
tween Dr. Jefferson and his wife. The trial was some- 
what heated and lasted many days. There were three or 
four other cases for trial to follow, all growing out of the 
same trouble, the quarrel between Dr. and Mrs. Jefferson. 
In the interest of time, after hearing, I ordered them tried 
together. 

In the meantime, Cowley's client lost the first case, a 
verdict being rendered for the defendant. He stated in 
open court, after the above order, that he would not try 
those cases together. I remarked, quietly, that I could not 
say whether or not he would try the cases, but that they 
would be tried together. A jury was impanelled to try the 
cases, after which Cowley stated that he withdrew as 
counsel for Miss Fitch, the plaintiff in one of these suits. 



182 SOME RECOLLECTIONS 

I immediately said to Miss Fitch that during the noon 
recess she could obtain other counsel. After the recess, 
Miss Fitch stated that she had not obtained other counsel, 
and that she desired to become non suit in her case. As 
the defendant would not consent, a verdict was taken for 
the defendant with her consent. 

Subsequently, Mr. Cowley filed a motion for a new 
trial for Miss Fitch before me, which after hearing, I 
overruled. Then Mr. Cowley filed a bill of exceptions, 
which I disallowed ; first, because they were not conform- 
able with the truth, and second, because as matter of law 
the plaintiff was not entitled to a new trial. Then Mr. 
Cowley moved in the Supreme Court to have his exceptions 
proved. At the same time Mr. Wier moved to have the 
exceptions dismissed, upon the same grounds stated by me 
in overruling the exceptions, to wit: Because taking them 
to be true as filed, he had no right to a new trial as a 
matter of law. The Supreme Court, after argument, took 
this view and so decided, dismissing the bill of exceptions. 
(See Fitch vs. Jefferson, 175 Mass. Reports 56.) 

By this time, Mr. Cowley had worked himself up into a 
good deal of feeling against me, and subsequently pre- 
sented petitions to the legislature in behalf of his clients 
to have me impeached. 

After a committee of the legislature heard all the evi- 
dence he had to offer with his argument, the petition was 
dismissed, or in parliamentary language, the petitioners 
had leave to withdraw. The Essex and Middlesex Bar 
Associations considered this and other petitions for the 
removal of judges such a misuse of the great right of 
petitions that they published and issued a pamphlet, en- 
titled "Misuse and Abuse of the Right of Petition for the 
Removal of Judicial Officers". Published by the Essex 
and Middlesex Bar Associations, 1900, as follows: — 



OF A LONG LIFE. 183 



"Misuse and A huse of the Right of Petition for the Re- 
moval of Judicial Officers. 

'It is essential to the preservation of the rights of every 
individual, his life, liberty, property and character, that 
there be an impartial interpretation of the laws and ad- 
ministration of justice. It is the right of every citizen to 
be tried by judges as free, impartial and independent as 
the lot of humanity will admit. It is therefore, not only 
the best policy, but for the security of the rights of the 
people, and of every citizen, that judges of the Supreme 
Judicial Court should hold their offices as long as they 
behave themselves well, and that they should have honor- 
able salaries ascertained and established by standing 
laws'. Declaration of Rights, Article XXIX. 

The Constitution of Massachusetts provides, that 'All 
judicial officers, duly appointed, commissioned and sworn, 
shall hold their offices during good behavior, . . . ; 
provided nevertheless, the governor, with the consent of the 
council, may remove them upon the address of both houses 
of the legislature'. Chapter 3, Article I 

In his address to the legislature in 1899, Governor 
Wolcott spoke as follows, concerning the judges of the Su- 
preme Judicial and Superior Courts: 

'No questions are more important to the Commonwealth 
than those relating to the Judiciary. Massachusetts has 
always been distinguished for the ability, uprightness and 
learning of those who have administered the law in her 
courts. N^o stain of corruption has ever rested upon any of 
her judges, and the decisions of her court have from the 
beginning taken first rank in weight of authority'. 

This undoubtedly expresses the general public sentiment 
of the Commonwealth concerning our judiciary. 

]^otwithstanding such sentiment, there have been 
presented to the legislature, within a few years, by dis- 
appointed litigants, several petitions to remove from office 
judges of the Supreme Judicial and Superior Courts. 

Mira Beals commenced an action against Augustin 
Thompson for sending to her husband a letter containing a 



184 SOME EECOLLECTIONS 



'false and malicious libel concerning her', whereby, as she 
claimed, she was greatly damaged. She recovered at the 
trial a verdict of thirty thousand dollars. The case was 
taken by exceptions to the Supreme Judicial Court, where 
the verdict was sustained. (Beals vs. Thompson, 149 Mass. 
R., 405.) Subsequently said Thompson commenced an 
action against his attorneys in said case, alleging negligence 
on their part in conducting his defence, and because they 
did not plead in the answer the statute of limitations. A 
verdict was returned for the attorneys, and said Thompson 
took the case to the Supreme Judicial Court, where the 
verdict was sustained. (Thompson vs. Dickinson, 159 
Mass. R., 210.) Said Thompson then petitioned the legis- 
lature for the removal of the judges of the Supreme 
Judicial Court, alleging that 'they aided and abetted in 
extortion, aided in barring the people from approaching 
the court for a redress of their wrongs ; assisted to establish 
a privileged class within the laws ; denying the people 
equality before the laws, and compelling the poor to sub- 
mit to oppression and wrong or purchase protection at ex- 
tortionate rates, almost invariably beyond their means of 
power'. 

A petition was presented for the impeachment and re- 
moval of Hon. James R. Dunbar, a justice of the Superior 
Court, by James W. Stillman, an attorney, who repre- 
sented that said Justice had wrongly and improperly de- 
cided a case against the petitioner. 

A petition was presented for the removal of Hon. Daniel 
W. Bond, a justice of the Superior Court, by Charles Cow- 
ley, an attorney. Judge Bond had previously heard a 
complaint against said Charles Cowley, for alleged mal- 
practice as an attorney, had found said Cowley guilty and 
liad sentenced him to be disbarred for a period of two 
years. 

The petition alleged that in delivering judgment 'the 
said Justice Bond, without just cause, but with great pre- 
sumption, officially pronounced words of censure upon 
your petitioner'. 

The last petitions presented to the legislature were for 
rthe removal of Hon. Edgar J. Sherman, a justice of the 



OP A LONG LIFE. 185 



Superior Court. These petitions were signed by Herbert 
P. Jefferson, Frances W. Fitch, and the same Charles 
Cowley. 

The grounds for the removal of said Sherman were on 
account of the alleged misconduct of the judge in a trial 
before him in 1898, wherein said Fitch, Jefferson and 
others were plaintiffs, and said Cowley was acting as their 
counsel ; that said Sherman improperly refused to continue 
said Fitch's case, and improperly and unlawfully ordered 
it tried with the case of said Jefferson and another. 

A motion for a new trial was filed by said Cowley, in 
behalf of said Fitch, based upon the same grounds. The 
judge overruled said motion. Thereupon said Cowley 
filed exceptions. The judge disallowed them, 'first, be- 
cause they were not conformable to the truth', and second- 
ly, because 'the plaintiff does not state nor claim in her 
motion for a new trial or in these exceptions that she pre- 
sented the questions of law attempted to be raised hereby 
at the trial and before the verdict and then saved excep- 
tions to the alleged erroneous rulings of the Court, and 
they cannot now be presented'. 

Said Cowley then petitioned the Supreme Judicial 
Court for leave to prove his exceptions. At the same time 
Mr. Wier, the defendant's counsel, moved to dismiss the 
petition. 

The Supreme Judicial Court after full hearing dis- 
missed the petition and sustained the decision of Judge 
Sherman. 

(See opinion by Holmes, C. J., in Fitch v. Richardson, 
175 Mass. R.) 

Then said Cowley filed these petitions to the legislature 
for the removal of Judge Sherman. 

The judges attacked by these several petitions are of the 
highest standing; they included the late Chief Justice 
Field, the present Chief Justice Holmes, and three justices 
promoted to the supreme from the superior bench on ac- 
count of eminent fitness; Justice Dunbar, a man of ac- 
knowledged judicial ability and capacity; Justice Bond, 
who had been District Attorney of the Northwestern dis- 
trict for twelve years prior to his nine years service upon 



186 SOME RECOLLECTIONS 



the bench ; and Mr. Justice Sherman, who had served four- 
teen years as District Attorney of the Eastern district, five 
years as Attorney General of the Commonwealth, and 
twelve years upon the bench of the Superior Court. 

The committees on the judiciary of the different legis- 
latures to whom were referred all the foregoing petitions, 
After full hearing, unanimously found and reported, that 
the charges were not sustained, and that the petitioners 
.have leave to withdraw. 

The different legislatures in all the cases accepted the 
reports of its committees. 

In none of the cases did the judges appear before the 
■■committee, and the petitioners were given ex parte hear- 
ings so far as they were concerned. In most of the cases 
members of different bar associations were present to hear 
the complaints, and when they thought proper, in the pub- 
lic interest, to make suggestions to the committees. 

The judiciary committee in its report on Judge Dun- 
I)ar's case, states the rule, which we think should be com- 
mended by the bar and public, as follows, 'We find, and 
report therefore, after full public hearing, of all that the 
petitioner had to present, and there are no grounds what 
ever for instituting proceedings for impeachment. It is 
the just pride of the Commonwealth that its judges have 
been and are able and upright, and its courts pure, that to 
no person is justice sold or denied. The stability of our 
government rests largely upon their freedom from accusa- 
tion or suspicion and in the constant confidence of all the 
people in their absolute integrity, and we should pause 
carefully to hear the proper complaint of any suitor that he 
lias not received justice in our courts by reason of incom- 
petent or corrupt judges. But petitions for impeachment 
plainly based upon trivial and groundless charges are a 
direct attack upon the dignity of the courts of this Com- 
monwealth and its judiciary and deserve severe cen- 
sure' ". 



CHAPTER XL 



CONTINUED JUDICIAL SERVICE. 



Case of Teefethen. 

James Albert Trefethen was held for the murder of 
Deltena J. Davis. 

The case was tried twice. The first time Trefethen was 
convicted of murder in the first degree, before Mason, C. 
J., Blodgett and Hammond, Justices. Albert E. Pills- 
bury, Attorney General, and Patrick H. Cooney, District 
Attorney, represented the government. Ex-Governor John 
D. Long and Marcellas Coggin appeared for the prisoner. 

It appeared in evidence that the prisoner had been keep- 
ing company with Miss Davis for some time ; that he had 
borrowed money from her; and got her in a family way; 
that she was insisting that he should marry her, that he 
was telling her that he could not as he had another girl in 
the same trouble. There was evidence tending to show 
that on the evening when she was drowned, he took her to 
drive in the direction of Wellington bridge, over the Mystic 
river ; that the team came back with him alone. 

There was considerable other evidence, all circumstan- 
tial. Her body was found in the river near the bridge. 
The defendant offered evidence to prove that Miss Davis 
had said that she intended to commit suicide. 

This evidence was excluded on the authority of Com- 



188 SOME EECOLLECTIONS 

monwealth vs. Felch, 132 Mass. K. 22. The defendant 
was convicted of murder in the first degree. 

The Supreme Judicial Court subsequently sustained the 
exception and granted a new trial on account of the ex- 
clusion of this evidence. (See Commonwealth vs. Tre- 
fethen, 157 Mass. R. 180.) 

At the second trial the Chief Justice assigned the fol- 
lowing judges to preside: Sherman, Dunbar and Braley. 
The Attorney General and P. H. Cooney, represented the 
Commonwealth. John D. Long and William Scofield, 
represented the defendant. 

In examining the jurors as to their qualifications, one 
of them stated that he was over sixty-five years of age. 

Governor Long stated that he challenged the juror for 
cause. The Attorney General argued that over age was not 
a cause for challenge. 

I turned to Judge Dunbar and asked, "Shall the chal- 
lenge for cause be allowed" ? He answered, "No". I 
turned to Judge Braley and asked the same question, and 
he answered in the same way, "No". I then said aloud — 
"The challenge for cause is allowed, the juror may step 
aside". Dunbar supposed that Braley and I had decided 
adversely to his opinion and Braley supposed that Dunbar 
and I had decided adversely to his opinion. 

After court, as we were walking home, I said to them 
by way of a joke, "You are not much aid in deciding upon 
evidence, you were both wrong on the question of admit- 
ting that evidence today, and I so decided against both of 
you". 

I do not quote this circumstance as showing superior 
knowledge on my part, because they were both better law- 
yers than I, but as showing notwithstanding the serious 
and solemn work in which we were engaged, I could in- 
dulge in a little pleasantry when it could do no harm. 



OF A LONG LIFE. 189 



In this second trial, the prisoner was found not guilty, 
upon substantially the same evidence introduced at the 
first. A witness was allowed to testify that Miss Davis 
told her a short time before the homicide, that she intended 
to commit suicide, although I doubt if the jury believed 
the evidence. 

This was one of those cases where all the judges, who 
sat in the two trials, believed the man acquitted to be 
guilty. 

After the first trial a lot of so-called criminal lawyers, 
allowed themselves to be interviewed, and expressed opin- 
ions, which were published in the newspapers, that Tre- 
fethen had been convicted on insufficient evidence, when 
they must have knovrn that the case would probably be 
tried again, such conduct being reprehensible. 

Langnee's Case. — Attorney General Pillshury. 

Langner was indicted for the murder of an old lady, and 
the evidence tended to show that the prisoner after having 
committed rape upon her, committed the murder to cover 
up that crime, upon the theory that "Dead men tell no 
tales". 

Judges Blodgett, Sherman and Fessenden presided at 
the trial in Dedham, in 1893. 

The indictment was drawn by Harvey H. Pratt the dis- 
trict attorney, and Robert O. Harris, who succeeded Mr. 
Pratt, represented the Commonwealth at the trial. Attor- 
ney General Pillsbury did not take part in the trial, al- 
though he was consulted during the trial by the District 
Attorney. Mr. Pratt had unwisely alleged in the indict- 
ment, that Langner committed the murder "with deliber- 
ately premeditated malice aforethought", instead of fol- 
lowing the usual and approved form of indictment. 



190 SOME EEOOLLEOTIONS 

Fales and Mellen representing the prisoner, claimed and 
argued that the government having alleged that the mur- 
der was committed "with deliberately premeditated 
malice", must prove it, although otherwise they would not 
have been so required. 

The court after arguments sustained the contention of 
the defence, and in the charge to the jury (which I de- 
livered in behalf of the Court), the law was so ruled. The 
jury convicted the prisoner of murder in the second degree. 
It was understood that the jury stood for a long time 10 
to 2 for conviction of murder in the first degree. 

The following correspondence ensued: 

"Attoeney General's Department, 
Commonwealth Building. 

Boston, Jan'y 4, 1894. 
My Dear Judge: — 

I have put down here a few observations on the indict- 
ment in Languor's case. After you have looked them over 
perhaps the Chief Justice, and possibly your associates at 
the trial, might like to see them. 

There is no difficulty in this question, if we keep our 
heads clear and our feet on the ground. But I fear the 
truth is that even judges are sometimes affected by con- 
templation of the "solemn consequences" which always 
permeate all proceedings for murder (after the victim is 
well killed). 

If the courts will look straight upon murder, with clear 
eyes, as they look at other things, instead of peering fear- 
fully at it around the corner of the gallows, we shall have 
no more Borden rulings or charges, and murderers will be 
convicted. 

I am, as ever, 

Yours truly, 

A. E. PiLLSBUEY. 

Hon. E. J. Sheeman". 



OP A LONG LIFE. 191 



"The Superior Court, 

Boston, Jan'y 4, 1894. 
My Dear Pillshury: 

Your letter, enclosing *a few observations on the indict- 
ment in the Langner's case' dated the fourth was duly re- 
ceived on the third instant. You are ahead of time in the 
date of your letter, if not with your observations. 

I do not think a discussion of the question suggested, at 
this time, will be profitable, for two reasons. The decision 
and ruling at the trial cannot be recalled. Secondly, prob- 
ably no district attorney will copy the form used in this 
case in the future, but if so, and the evidence shall be the 
same as in this case, neither he nor the attorney general 
will hazard the risk of a second trial, in a capital case, even 
if the presiding justices can be induced to rule in favor of 
your present contention, but will obtain a new indictment 
in the usual and approved form. Your criticism of the 
justices in another trial and suggestions of having justices 
preside with 'clear heads and courage' looks as though 
the 'few observations' are for the purpose of placing the 
responsibility for a partial miscarriage of justice. 

When the justices who presided saw the indictment and 
learned of the evidence, which was to be presented in sup- 
port of it, they made such examination as they were able 
to, and gave careful and conscientious consideration to 
the question raised, and then informed the district attor- 
ney, that they desired such suggestions and aid as he and 
the attorney general could give the court. After consult- 
ing with the attorney general and an examination of the 
authorities, the district attorney informed the court, that 
the attorney general and he both feared that the law was 
as finally ruled at the trial and that they could give the 
court no aid or suggestion. 

The brief observations, which you now submit, would 
have been thankfully received at that time. 

You have filled the ofiice of attorney general with signal 
ability, and, if I have not entirely misjudged you, you have 
the strength and courage to take all the responsibility 
which belongs to you for errors or mistakes in the adminis- 
tration of the duties of that office. 



192 SOME RECOLLECTIONS 



While the attorney who drew the indictment takes a 
large share of the responsibility for not having followed 
an adjudicated form, I submit to your fair and just con- 
sideration, whether or not, the attorney general who saw 
the indictment and knew or ought to have known the evi- 
dence which was to be presented in support of it, for a long 
time before the trial, may not take upon himself some 
part of the balance for not having obtained a new indict- 
ment and thereby avoided the raising of at least a doubt- 
ful question. 

Unless our relations were such that we may talk frankly 
as between Pillsbury and Sherman your letter would be 
improper and this letter could not be written. 

I remain, 

Sincerely yours, 

Edgar J. Skeeman". 

Hon. Albert E. Pillsbury, 
Attorney General". 

(Copy of Pillsbury' s reply of January 6, 189 J/.). 

"Boston, Jan'y 6, 1894. 

My Dear Judge : 

I have seldom been more surprised than I was on re- 
ceiving your letter. I trouble you with a reply to it prin- 
cipally in order to assure you of my regret that I evidently 
have spoken more freely than your view of our cordial re- 
lations will warrant. You will pardon me for adding one 
or two suggestions which seem necessary to meet other 
possible misapprehensions. 

If the impression was ever given the judges that I re- 
garded the questionable words in the indictment as mate- 
rial, it was an inadvertence. I tried as hard as I could 
to persuade Mr. Harris to argue the question thoroughly, 
believing that the argument would satisfy the court ; but 
he seemed to think the judges had so fully made up their 
minds that it would be of no use, I have had but one opin- 
ion about it from the time when the words were first 
noticed and considered by us, on the eve of the trial ; and 



OF A LONG LIFE. 



193 



while I do not approve the form, nor deem it prudent to 
experiment with new forms of indictments for murder, 
and while I am willing to take my full share of the re- 
sponsibility for this indictment, I take the responsibility 
also of such criticism as it may invite in saying that if the 
peculiarity had been discovered earlier I should have taken 
no steps toward a new indictment in this case, in the view 
which I have always taken that the words are of no effect. 
I sent you the "observations" without the remotest idea 
that they or any comments of mine on the case could possi- 
bly be regarded as offensive, and because I knew that the 
judges were interested in the question, as I had talked it 
over very fully with the chief justice, and as Judge Blod- 
gett, calling on me, had opened the subject, and I had dis- 
cussed it somewhat fully with him. 

I hope you do not mean all that your suggestion implies 
as to my unwillingness to take responsibility, criticism or 
blame when it belongs to me, and whether it does or not. 
I have been subjected to more unjust criticism during the 
past twelve months than any other man in Massachusetts. 
I knew beforehand that I should be, and I have not cried 
out about it. And I have refrained from mentioning this 
case in my report, as I might properly do in connection 
with other suggestions which I feel bound to make, only 
because I am reluctant to say anything not absolutely 
necessary, which may seem to involve the criticism of the 
courts or other constituted authorities. 

You must also allow me, my good friend, respectfully 
but firmly to dissent from another intimation of your let- 
ter. I cannot admit that I am not a competent judge of 
what is proper in my correspondence with my friends or 
with public officers, nor that judges cannot be spoken to or 
even criticised ; and I acknowledged no limitation upon the 
right to do this however plainly, if civilly, except that it is 
undesirable to disturb public confidence in the officers of 
the government especially in the judiciary. But my letter 
to you was not public, and if there was anything uncivil or 
discourteous in it I assure you it was not so intended, and 
I apologize for and withdraw it; and while it is beneath 
both you and me to bandy compliments, I may add, since 



194 SOME EECOLLECTIONS 

I have gone so far, that there is no judge on the bench in 
Massachusetts to whom I should be so unlikely to apply any 
such imputation as I fear you derived from my letter, as 
to you. 

Very truly yours, 

A. E. PiLLSBURY. 

Hon E. J. Sherman". 

I afterwards talked the question over in a friendly way 
with Mr. Pillsbury. We neither of us, ''Were convinced 
against our wills, but were of the same opinions still". 

Since I have known Mr. Pillsbury, I have entertained 
a high opinion of him. He is a very able lawyer, truthful 
and conscientious to the highest degree, and a faithful and 
abiding friend. 



Trial of Commonwealth vs. Patrick Sullivan, 

Patrick J. Foley and Cornelius Nagle, for 

Murder. 

The account of this case is by Ex-Judge Charles S, 
Lilley. 

In September, 1894, there lived in the town of Burling- 
ton, Massachusetts, a retired farmer named Duroy S. Pos- 
ter. On the night of September 11th, he had occasion to 
visit a store in l!^orth Woburn. Having transacted the 
business which called him to the store he set out on foot 
at about ten o'clock for his home in Burlington. When he 
had travelled some distance and had reached a point in 
the highway which was somewhat secluded and remote 
from dwellings he was stopped by two men who gTuffly de- 
manded his money. Foster was about fifty years of age, 
tall and of good physique, but, seeing that the men were 



OF A LONG LIFE. 195 



armed with revolvers and having no weapon himself, he 
deemed resistance useless, and handed them his purse 
which contained about seven dollars, l^ot far away a horse 
and covered wagon stood in the road. Having secured 
Foster's money the robbers spoke sharply to some one in 
the wagon, and walking away rapidly were followed by 
the team. 

At about half past ten o'clock Charles H. Nichols, who 
lived at the Mclntire farm, so-called, was aroused by Fos- 
ter who informed him that he had just been held up by 
men with revolvers and robbed of his money. Nichols 
joined Foster forthwith and the two went to the house of 
Henry P. Cox, in Burlington. On being told of the rob- 
bery and the direction in which the highwaymen had gone. 
Cox, who had a fast horse, promptly volunteered to assist 
in pursuing them. He harnessed his horse at once and 
accompanied by Foster and Nichols drove rapidly toward 
Billerica. Having driven several miles they saw a horse 
and covered wagon standing by the roadside nearly oppo- 
site the house of Mr. Pacho not far from Billerica Center. 
Foster believed this to be the same horse and wagon which 
he saw when he was robbed, and he and his companions 
pushed on to the house of Everett W. Livingston, consta- 
ble of Billerica, arriving there about midnight. Living- 
ston was a good specimen of the old New England town 
constable. He had held the office for some years, had suf- 
ficient knowledge of his powers and duties and was active 
and courageous. He was rather spare, but tall and mus- 
cular, and not without reputation for vigorously enforcing 
the law. 

With promptitude which might well serve as an example 
to officers making greater pretensions than this plain town 
constable, Livingston, on hearing Foster's story, put his 
handcuffs and revolver in his pocket and quickly joining 



196 SOME EECOLLECTIONS 

Foster, Cox and I^Tichols drove to the Pacho house with 
them. 

The horse and wagon which had been seen here had 
gone, but the tracks made by the wagon wheels and the 
horse's shoes were plainly visible. The wheel tracks in- 
dicated that the tires of the wheels were not of uniform 
width, and the horse's foot-prints showed that his shoes 
were very long and narrow. It was a clear night and the 
wheel and shoe tracks were easily traced in the highway. 
Following them for about ten minutes, Livingston and his 
party came to the house of Mrs. Leonard, situated not far 
from the road leading from Billerica to Lexington. 

Here they saw a horse and covered wagon standing by 
the side of the road under some birch trees opposite the 
Leonard house. A man stood at the horse's head. Foster 
exclaimed "There they are". Livingston, Cox and Nichols 
alighted quickly and left Foster in their carriage to hold 
the horse. Livingston approached the man who stood at 
the horse's head by the roadside and saying, "I arrest you" ! 
placed the muzzle of his revolver against the man's breast, 
passing his handcuffs to Il^ichols at the same time and di- 
recting him to secure the man's wrists. With his disen- 
gaged hand Livingston then gripped his prisoner by the 
coat collar. ISTichols was trying to handcuff the man, and 
Cox, seeing that Livingston was resisted, seized him by the 
back of the neck. In the struggle which took place, and 
which occupied but a moment, the arresting party and 
their prisoner had moved to the middle of the road. In this 
posture of affairs two men suddenly bounded over the 
stone wall by the side of the road and opened fire on the 
arresting party with revolvers. One bullet grazed Living- 
ston's cheek, others cut twigs from the low spreading 
branches above his head. Nichols and Cox moved away 
elowly toward their carriage. Seeing that a determined 



OF A LONG LIFE. 197 



attempt at rescue was to be made, and believing, as well he 
might, that he was in great peril, Livingston released his 
hold upon his prisoner, and, stepping backward a few paces 
under a brisk fire from his assailants, fired one shot at 
them. He tried to fire again, but found that the cylinder 
of his revolver had become fixed, and that the weapon was 
useless. Then, as he graphically said afterward, when 
the bullets were whistling about him, and he realized that 
he was defenceless, through the failure of his own weapon, 
the heart went out of him. When the firing began Cox's 
carriage in which Foster was still seated moved up the 
road twenty or thirty feet beyond the covered wagon. As 
Livingston, Cox and Nichols retreated toward the car- 
riage their assailants fired volley after volley at them. 
!N'ichols turning to look at Cox's team saw the Foster's 
head was hanging over the seat of the carriage and that 
the horse was prancing. He ran toward the carriage, but 
before he reached it Foster had fallen to the ground, and 
on kneeling by his side to see whether he was injured 
Nichols found that he was dead. He immediately cried, 
"Foster is dead", and Livingston shouted "This is mur- 
der". A bullet had passed through Foster's brain killing 
him instantly, and, as he was in the direct line of the fir- 
ing by the men who had come over the wall, it was plain 
that one of their shots had caused his death. The fatal 
bullet had entered his head about two and one half inches 
behind the right ear making a jagged opening from which 
blood was flowing freely. Cox's horse, having become ex- 
cited by the firing and now being free from control, dis- 
appeared up the road, and, with the carriage, was found 
in North Lexington the next night. At the cry of "mur- 
der" Livingston's prisoner and his two rescuers sprung 
into the covered wagon and lashing their horses drove 
swiftly away in the direction of Billerica Center. Living- 



198 SOME EECOLLECTIONS 

ston followed on foot and kept the wagon in view for some 
distance when owing to the turn in the road it was lost to 
sight. As he ran he observed that several horse collars, 
and other parts of harnesses, and a carriage robe were 
scattered along the highway. As these were not in the 
road when he drove to the Leonard house, and as no one 
had passed in either direction in the meantime, it was evi- 
dent that they were thrown from the wagon in its flight. 
Pressing on Livingston soon reached Billerica Center. 
There he secured a horse and carriage at once, and sum- 
moning to his assistance two townsmen, George B. Smith 
and James E. Coulter, he resumed the pursuit. Smith 
was armed with a revolver and Coulter with a double- 
barrelled shot gun. 

The noise made by the fleeing wagon, driven at great 
speed and creaking and rattling from age and wear, was 
still audible in the quiet of the night. Guided by the sound 
Livingston soon found the peculiar wheel tracks and 
hoof-prints which had led him to the Leonard house, and 
ioUowed them until they were lost in Woburn where the 
ground was so hard that passing teams left no traces. 
Livingston and his companions then returned to Billerica 
Center spreading the alarm to the countryside on their 
way. 

Later the horse collars, parts of harnesses and other 
things which Livingston had seen in the highway as he 
pursued the covered wagon, immediately after the shoot- 
ing near the Leonard house, were picked up and taken to 
the Stearns House, a public house in Billerica. 

On the night of September 11th, Benjamin Spalding, 
who lived in Billerica, nearly opposite the Pacho house, 
saw that his barn was in order and securely locked, and 
went to bed at about nine o'clock. Rising very early the 
next morning, he found that the barn had been entered and 



OF A LONG LIFE. 199 



that three horse collars, a single harness, a carriage robe, 
and a bag of oats, which he had left in their proper places, 
had been stolen. He found his horse collars, harness and 
robe among the articles which had been taken to the 
Steams house. 

In the morning of September 12th, it was discovered 
that the barn of Mrs. !N'oyes, which was not far from the 
Leonard house, had been broken into during the night and 
that certain harnesses, a part of a saddle, a blanket, and a 
half barrel of cracked corn had been taken away. Some 
of these articles were found among those at the Stearns 
house. 

As may be supposed, highway robbery, larceny from 
buildings in the night-time, and murder in quiet country 
towns of Middlesex County, noted for the peaceful and 
law-abiding character of their inhabitants, deeply aroused 
and agitated the whole community. As the news spread on 
the twelfth of September, many journeyed to the scene of 
the murder from far and near, and Billerica, awakened 
from its usual calm, became the centre of public interest. 

A reward was offered and extraordinary efforts were 
made by state, city and town officers for the discovery and 
capture of the criminals. 

At the time when he approached the man who stood at 
the horse's head near the Leonard house, Livingston ob- 
served that the horse was small and that his harness fitted 
him loosely, the collar and hames being much too large. 
After the covered wagon had driven away with Livingston 
in pursuit, Cox, who was a horseshoer by occupation, care- 
fully examined the tracks made by the horse's hoofs and 
was again struck by the peculiar shape of the shoes, having 
seen few in his experience that were so long and narrow. 
It was evident then that the first thing to be done was to 



200 SOME RECOLLECTIONS 

find a covered wagon having wheels with tires of unequal 
width, and a small horse with long and narrow shoes. 

Searching parties explored the country to the south and 
east of Woburn, some going by one highway, and some by 
another. It was soon found that at about three o'clock in 
the morning of September 12th, a small horse drawing a 
covered wagon was seen passing through Stoneham in the 
direction of Melrose Highlands on the road usually taken 
for Somerville; that an hour later a team of like descrip- 
tion was seen passing through the square at Maiden. The 
wagon seen in Maiden had the name "P. Sullivan" painted 
on its side, and it was observed that the rear wheels were 
apparently older than the front ones, and that the latter 
were unusually small for a vehicle like that to which they 
were attached. Mile by mile the course of the team was 
traced from Maiden, until finally the wagon was found in 
a yard in Somerville. On the top of its cover there were 
several long scratches in the dust which had lodged there. 
These scratches appeared to have been made by overhang- 
ing branches, and caught along the sides of the wagon there 
were fresh pine needles. It was found that the wagon be- 
longed to Patrick Sullivan of Somerville, and on the night 
of September 12th, he was taken into custody. His arrest 
was immediately followed by that of Patrick J. Foley and 
Cornelius IJ^agle, both of Somerville. Thus within twenty- 
four hours from the time of Foster's death the men who 
were charged with his murder were in the hands of the 
officers of the law, who diligently pursued their investiga- 
tion which brought to light the following facts : Sullivan, 
Foley and INTagle were related by marriage, and were in the 
habit of meeting frequently. Sullivan was twenty-eight 
years old, Foley was twenty-six, and Nagle was younger 
than the latter. Sullivan owned a small horse, variously 
described as a mustang, a broncho, and a pony, having 



OF A LONG LIFE. 201 



shoes that were long and narrow, and in his stable there 
was a harness, which being put upon the horse, was found 
to fit him loosely, the collar and hames being much too 
large. Sullivan was engaged in a small express and job- 
bing business. Early in the evening of September 11th, 
he detached the front wheels of his wagon and put in their 
place a pair of smaller wheels which he had borrowed 
from James E. McGaffigan, a fruit peddler of Somerville, 
McGaffigan's wheels were red and freshly painted and 
were in marked contrast to Sullivan's rear wheels, which 
were old and dingy. In answer to a question by Mc- 
Gaffigan, when he borrowed the latter's wheels, Sullivan 
said that he was going to ISTewton that night. At about 
eight o'clock in the evening, Sullivan harnessed his horse 
with the collar and hames harness, and, taking his covered 
wagon, drove to a store in Somerville where he met Eoley 
and Kagle, who got into the wagon with him, and the three 
men set out on their sinister expedition. Their precise 
course was not ascertained, but the team was seen in 
Woburn by a police officer at about nine o'clock. It was 
driven to the side of the street, and the officer saw Sullivan, 
Foley and I^agle alight from the wagon and enter a neigh- 
boring barroom, where they remained for about twenty 
minutes and then drove off at a smart trot toward IvTorth 
Woburn. They were seen later by Francis H. Marion, a 
young man about eighteen years of age, living with his 
father in Burlington. He attended a temperance meeting 
at the church in that town on the night of the 11th of 
September. As the meeting was somewhat protracted, he 
did not leave for home until about ten o'clock. As he was 
walking by the side of the road leading to Billerica, at 
about twenty minutes past ten, he saw on the crest of an 
elevation in the highway a team coming toward him. He 
continued on his way and as the team passed him he saw 



202 SOME KECOLLECTIONS 

that the horse was small, that he had a loose-fitting harness 
with collar and hames, that the wagon was a covered wagon 
and that there was a man on the driver's seat. He then 
saw two men advancing on foot. One of them, whom he 
afterward identified as Foley, approached him, and assum- 
ing a threatening asj)ect, drove him into the middle of the 
road. Quickening his pace, Marion soon met Foster, whom 
he knew well. Foster was on foot and seemed to be much 
excited. Stopping for a moment only to exchange a word 
or two with Marion, he went on, apparently intent upon 
following the team and the two men. 

An indictment was found by the grand jury for Middle- 
sex County in which Sullivan, Foley and JSTagle were 
charged with murder in the first degree, and a special 
session of the Superior Court for that county was ordered 
for their trial. This session was opened at Lowell on 
Monday, June 3d, 1895, Justices Sherman and Lilley 
presiding. The late Hosea M. Knowlton, Attorney Gen- 
eral, and Fred ]^. Wier, District Attorney for the northern 
district, appeared for the Commonwealth. 

Samuel K. Hamilton of Wakefield, a leading member of 
the Middlesex Bar, appeared for Foley, having been as- 
signed to his defence by the court, and the late Francis P. 
Curran of Woburn, represented Sullivan and l^agle. The 
accused had been previously arraigned and had entered 
pleas of "not guilty". 

Some two hundred or more citizens of the county had 
been summoned for service as jurors, and on motion of 
the Attorney General, the Court proceeded "to impanel the 
jury. Each of the prisoners had the right to challenge 
twenty-two of the jurors peremptorily, and as many more 
as he could show cause for challenging, and the government 
had the like right of challenge. The work of selecting a 
jury was attended with some difficulty and delay, the 



OF A LONG LIFE. 203 



prisoners as well as the Commonwealth exercising the 
right of challenge freely. Many of the jurors, too, were 
excused from service by the Court, some upon the ground 
that they were opposed to capital punishment, some for 
the reason that they had formed an opinion as to the guilt 
of the accused, some because of bodily infirmities, and 
some because they were exempt by law from jury service. 
In view of some of the grounds for exemption from ser- 
vice that were urged upon the Court, the senior Justice 
was moved to say that he was reminded of the story about 
the man who was summoned for jury duty in a iN'ew 
Hampshire court, and who, when his name was called, told 
the presiding Justice that he was very deaf and couldn't 
hear a word of the testimony if he were to serve as a 
juror. The Judge excused him at once, whereupon the 
clerk of the court said "Why, your Honor, I know that 
man well and he is no more deaf than I am". "N^ever 
mind Mr. Clerk", said the Judge, "if he's deaf we don't 
want him, and if he's a liar we don't want him". The 
senior Justice took pains to add, with a suspicious twinkle 
in his eye however, that of course the story had no appli- 
cation to matters then under consideration. The list of 
those who had been summoned for jury duty was ex- 
hausted before the array was completed, and the sheriff 
was ordered to bring in talesmen with the result that on 
the next day some thirty or forty substantial citizens, 
taken from their usual occupations at short notice, were 
presented to the court as more or less unwilling candi- 
dates for places on the panel. From these men the num- 
ber of jurors still required was soon chosen. Horace Ela, 
a grocer of Lowell, who had been summoned by the sher- 
iff in the street as he was making his rounds with his de- 
livery wagon, was appointed foreman by the court, and, 



204 SOME EECOLLECTIONS 

the usual formalities being observed, the District Attor- 
ney outlined the Commonwealth's case to the jury. 

The trial proceeded without serious interruption or un- 
usual incident, save the brief illness of one of the jurors, 
and the sudden collapse of Foley's wife on the witness 
stand as she was testifying to her husband's whereabouts 
on the night of September 11th and 12th, until Thursday, 
June 13th, when late at night the jury returned a verdict 
of guilty of murder in the second degree as to each of the 
prisoners. The Commonwealth contended that the ac- 
cused left Somerville on the night of September 11th, 
with the common purpose to go into the country and steal 
from buildings, and to resist any interference with or 
opposition to their unlawful enterprise to the extent of 
killing such person or persons as might interfere with, op- 
pose, or attempt to detain them if necessary for their own 
security, or, that if their original plan did not contem- 
plate the killing of such person or persons as might inter- 
fere with or oppose them, that at the time of the shooting 
near the Leonard house they were resisting a lawful arrest 
of which they had reasonable notice, and then formed the 
purpose to carry their resistance to the point of killing 
some one or more of the arresting party if their escape 
could not otherwise be effected, and that they were so co- 
operating in the execution of that purpose when Foster 
was killed. 

Counsel for the prisoners combated these contentions 
vigorously and ably, overlooking nothing which told in 
favor of their clients. 

Because of some of its peculiar circumstances the case ^| 

excited no little public interest, and the court room was | 

crowded from day to day, the attendance being very large 
as the time approached for the closing argument of the 
Attorney General. His fame as a lawyer and eloquent ad- 



OF A LONG LIFE. 205 



vocate had gone abroad, and those who came to hear him 
were not disappointed. His argument was worthy of his 
reputation. 

The defence was an alibi, the prisoners asserting that 
they spent the entire night of the 11th and 12th of Sep- 
tember in Somerville. Many questions of law were dis- 
cussed at the trial and numerous exceptions were taken to 
the rulings of the presiding Justices. 

Justice Sherman directed the course of the trial, and 
Justice Lilley delivered the charge to the jury. 

Many of the exceptions to the rulings of the Justices 
were finally waived, but some of them were pressed and 
argued before the full bench of the Supreme Judicial 
Court, in November, 1895, and were overruled in Janua- 
ry, 1896. The case is reported in volume 165, of the 
Massachusetts Eeports, at page 183. 

Upon the coming down of the rescript overruling the 
exceptions the Commonwealth moved for sentence in the 
Superior Court, and each of the prisoners was sentenced 
to imprisonment for life in the Massachusetts state prison. 



CHAPTER XII. 



CONTIN-UED JUDICIAL SERVICE. 



Commonwealth vs. Eeanciszek Umilian poe the 
Murder of Kazinney Jedrusik. 

This case was tried at ISTorthampton before Justices 
Sherman and Stevens, October, 1900. District Attorney 
John C. Hammond appeared for the government and J. 
B. O'Donnell represented the prisoner. 

This case is interesting as there is so much similiarity 
between it and the case of John C. Best (see page 208). 
Umilian and Jedrusik were farm hands working for Mr. 
Munroe Keith at Granby. Umilian was foreman and 
Jedrusik second hand. Umilian was engaged to one, 
Rosa, who did house work in the same family. Umilian 
and Rosa went to Chicopee to be married by a polish 
priest. The priest showed Umilian a letter in which it 
was stated that Umilian was a married man and had a 
wife and two children in Russia. The priest sent Umilian 
back to Granby with a trusted person to clear up the letter 
and obtain a marriage license. 

When they reached Keith's house Jedrusik owned up 
that he and some other young men had sent that letter as a 
joke. Umilian obtained his marriage license with the ex- 
planation that the letter was a joke, went back to Chicopee 
and was married, but he was very angry and grew more 
and more so as time went on, swearing "That he would 



OF A LONG LIFE. 207 



kill Jedrusik and throw his head to the hogs". He made 
many violent threats of similiar kind. Umilian and 
Jedrusik both continued on the farm, although Umilian 
would not forgive Jedrusik, or have anything to do with 
him. Umilian's wife tried to make peace and have her 
husband be friends with Jedrusik, but it was of no use. 
Perhaps on that account he became somewhat jealous of 
Jedrusik. 

One Sunday morning, January 31, 1899, after the 
family had gone to church, leaving Umilian, wife and 
Jedrusik at home, the two men went to the barn to do the 
chores. Jedrusik disappeared and was never again seen 
alive. Umilian stated that after the work was done at the 
barn Jedrusik went off in the direction of the village. 

The wife acted very unhappy as if she believed that 
her husband had had something to do with Jedrusik's dis- 
appearance, but she said nothing. 

On April 10, 1900, a green foreign boy, who was work- 
ing with Umilian in the field, saw Umilian go to an old 
unused well, lift up a large flat stone which completely 
covered it, and look down into the well, after which he 
placed the stone back in position. The boy subsequently 
told Mr. Keith of this incident. The officers then ex- 
amined the well, and found the body of Jedrusik tied up 
in a bag, weighted with stones, the arms and legs tied up 
in another bag also weighted with stones, but the head 
could not be found. Remembering Umilian's threats that 
he would kill Jedrusik and throw his head to the hogs, 
the hog pen was carefully cleared and down deep in the 
bottom the head was found. 

Umilian was then arrested, the case was tried upon cir- 
cumstantial evidence which was very strong and conclu- 
sive against the prisoner. 

He testified in his own behalf, and called his wife as 



208 SOME RECOLLECTIONS 

a witness ; in this he was unfortunate. She seemed to try 
to help him, but she knew many important things which 
were against him and she acted very much as though she 
believed her husband had killed Jedrusik. 

I never heard a case tried like this ; no objections or ex- 
ceptions were taken during the trial. O'Donnell asked the 
court to rule that there was not sufficient evidence to con- 
vict the prisoner. This ruling being refused an exception 
was saved. 

I charged the jury, which charge was entirely satisfac- 
tory to O'Donnell. A verdict of guilty was returned of 
murder in the first degree. The case was taken to the 
Supreme Court, which overruled the exceptions (see Com. 
vs. Umilian, 177 Mass. R. 582). 

It became my duty to pass the sentence of death, that 
the prisoner be electrocuted, July 7, 1901, which sentence 
was carried into execution after the Governor and Council 
had refused a petition to commute the sentence to im- 
prisonment for life. 

The trial of John C. Best for the murder of George E. 
Bailey, tried before Justices Sherman and Fox, at Salem, 
in March, 1901, was an exceedingly interesting case, and 
particularly so, because it was one of the most satisfactory 
and conclusively proven cases of circumstantial evidence 
ever tried in this Commonwealth. Attorney General H. 
M. Knowlton, District Attorney W. Scott Peters and Ro- 
land H. Sherman, Assistant District Attorney, represented 
the government and James H. Sisk and ]^. A. Clarke ap- 
peared for the prisoner. 

George E. Bailey was foreman on a farm in Saugus, 
called the Breakheart Hill Farm, owned by certain gen- 
tlemen, who used it as a farm for camping and hunting. 
Best was employed as a farm hand on the same farm. 



OF A LONG LIFE. 209 



The only other person on the farm was Susie L. Young, 
Bailey's wife's half sister. 

While Susie Young was away on a visit in Maine, 
Bailey disappeared. Best, the only person remaining, re- 
ported "That Bailey had skipped" — run away. 

There had been ill feeling between Bailey and Best for 
some time. Bailey and Susie Young had been living to- 
gether in adultery, and Best knew this. Best had made 
love to Susie, but she remained loyal to Bailey. Bailey 
went home to the farm one evening and never was seen 
alive afterwards. Some nine days after a bag was dis- 
covered floating in the water near Floating Bridge in 
Lynn, six miles away from the Breakheart Hill Farm. It 
contained the trunk of a human body. Upon dragging 
the pond all the parts of the body were found, and it 
proved to be the body of Bailey. 

Some of the circumstantial evidence was as follows: — 
Best stated that Bailey came home a little before eight 
o'clock, put up his horse, and then disappeared. There 
were found in Bailey's body near the heart, two bullets, 
which caused his death. It appeared that those bullets 
were fired from a Winchester rifle — wider and with dif- 
ferent groove from other rifles — which grooves leave their 
imprint on the bullets; the bullets also showed another 
mark. Best was an excellent marksman, he owned a Win- 
chester rifle which was kept at the farm. That rifle had 
a rust mark inside, which caused a mark on a bullet ex- 
actly like the ones found on the bullets in Bailey's body. 
At just before eight o'clock on the night of Bailey's dis- 
appearance, two shots in quick succession had been heard 
coming from the farm. 

The four or five bags in which the body had been put, 
after being cut into parts, were the same kind with the 
same marks used at the farm. The bags were weighted 



210 SOME EECOLLECTIONS 

with stones and when the bags and stones were brought 
back to the farm, the stones fitted right into the bank 
wall, where they or ones just like them had recently been 
removed. 

A wagon with a peculiar rattle, known to the neighbors, 
which had been used on the farm for a long time, was 
heard to pass the houses of the neighbors between nine 
and ten o'clock that night, going towards Floating bridge 
pond, and two hours afterwards returning home. This 
wagon with something in it covered, which looked like 
dead hogs was seen going towards the pond, and a short 
time after it was seen empty returning. 

Evidence was given of hearing the same wagon drive 
down on to Floating bridge, stop a short time, turn 
around and come back; that when it went, it had some- 
thing covered up in the body of the wagon and when it 
came back it was empty. 

The government, during the trial, had learned that 
Best's brother-in-law, one William H. Stiles, had a burn- 
ing secret — important evidence against the prisoner — but 
they did not know what it was. Best had told it to this 
brother-in-law and he was frightened at learning such a 
secret, as it convinced him that Best was guilty of the 
murder. So he could not keep it. He told it to a friend 
with a promise from that friend not to divulge it, but 
that friend could not keep it. It was at last learned by 
the government. 

Stiles took the stand and testified that he went to the 
Salem jail, saw the prisoner and he gave him a plan of 
the cellar imder the Breakheart Hill barn, told him to 
go there to a place marked by an X under the sill of the 
barn; he could find a paper, take it, keep the money and 
go with the watch at low tide and throw it as far as he 
could into the ocean; for, said the prisoner, "If they find 



OP A LONG LIFE. 211 



the watch they will hang me". Stiles said he never went 
to the bam. The next morning one of the officers testi- 
fied, that since the night before he had been to the barn 
and found the bundle as described by Stiles, and produced 
it in court. It contained $75.00 in money and bills, and 
Bailey's watch. 

When the evidence was concluded and the trial finished 
the jury found the prisoner guilty of murder in the first 
degree. It was a clear case; there could be no reasonable 
doubt about the prisoner's guilt. 

The prisoner had three motives for committing the 
murder : — 

1. He was infatuated with Susie Young, and he 
thought if he could make her believe that Bailey had run 
away, deserted her, that she would consent to become his 
wife or mistress. 

2. He believed that Bailey had about $500, which he 
could secure. He was mistaken about the amount which 
Bailey had. 

3. He believed that the owners of the farm would 
make him foreman if he could make them believe that 
Bailey had run away. 

This case shows how the devil helps a man into crime 
but never helps him out. If Best had knoAvn what most 
Indians know, that in order to cause a human body to sink 
under the water and remain there, you must cut open the 
bowels, otherwise the gases will form, and the body will 
rise to the top of the water. This trunk of the body was 
weighted with a stone weighing forty pounds. As soon 
as the gases had time to form, the body rose to the top of 
the water. 

If the bowels had been opened the body would have re- 
mained at the bottom of the pond, and very likely this 
murder never discovered. 



212 SOME RECOLLECTIONS 

The case was taken to the Supreme Court on exceptions, 
and after full hearing they were overruled. (See Com- 
monwealth vs. John C. Best, 180 Mass. R. 492.) 

Subsequently a motion was filed before Justices Sher- 
man and Fox to set aside the verdict and grant the pris- 
oner a new trial, because one of the jurors who sat in the 
trial was partially deaf. This motion was heard and 
overruled. 

The case was taken to the Supreme Court a second time 
on exceptions. The exceptions were overruled by that 
court. (See Commonwealth vs. John C. Best, 181 Mass. 
R. 545.) It then became my duty to sentence the pris- 
oner to be executed. A petition was presented to the Gov- 
ernor and Council to commute the sentence to imprison- 
ment for life, which was refused. He was executed in 
accordance with the sentence, September 9, 1902. 

The two cases just described were remarkable as being 
so similiar. One, the case of Umilian, was committed in 
Granby, Hampshire County, January 31, 1899, the other, 
the case of Best, was committed in Saugus, in Essex 
County, October 8, 1900. Both were farm hands and 
they killed farm hands working with them. Each cut in 
pieces his victim with an axe, put the body in a bag, 
weighted with stones, put the arms and legs in another 
bag, weighting that with stones; each put the bags under 
water, one in an old, unused well, the other in a pond. 



Commonwealth vs. Lorenzo W. Barnes for the 
Murder of one John Drake. 

The case was tried before Blodgett and Dewey, Justices, 
March, 1897. F N". Wier, District Attorney, George A. 
Sanderson, Assistant District Attorney, for the govern- 



OP A LONG LIFE. 213 



ment; John L. O'l^eil and John C. Burke appeared for 
the prisoner. 

The prisoner was convicted of murder in the first de- 
gree. When the time for sentence arrived, the govern- 
ment applied to Mr. Justice Blodgett, who was holding 
court in Boston. 

Judge Dewey was then engaged in the western part of 
the state; Judge Blodgett said that it was an unpleasant 
duty, and that there was no reason why he should leave 
his court in Boston and go to East Cambridge to pass the 
sentence, as there was another judge holding the criminal 
session there, who should perform that duty. The gov- 
ernment then applied to that judge. He replied that as a 
lawyer he had never been engaged in a murder trial ; that 
he had never seen or heard a man sentenced to death ; and 
that it did not seem to him that he could possibly pass the 
sentence. The Chief Justice intimated to him that it 
seemed to "fall to his lot", to be his duty to perform the 
ceremony, and as I was at the time holding civil session 
in East Cambridge, and as I had had a large experience 
in such cases, perhaps he could induce me to help him. 

He then applied to me, telling me that he should die in 
attempting such an ordeal. I told him he should not re- 
gard such a duty as personal, that he was only one of the 
cogs in the machinery of state to carry out the execution 
of the law. I gave him the form of sentence and told him 
I would go into court with him and aid him with my 
presence and counsel. He expressed himself as very 
thankful. 

The next morning we went into court together, which 
was opened in solemn form. There sat the convict, 
Barnes in the dock, pale and haggard. As I looked at the 
prisoner and at my associate, it was doubtful which was 
suffering the more. As the judge appealed to me for the 



214 SOME EECOLLECTIONS 

last time I could not refuse, so I pronounced the sentence, 
and the sad and painful ceremony was over. 

In case of Commonwealth vs. Alfred C. Williams, tried 
in Salem before Dunbar and Braley, Justices, in Febru- 
ary, 1898, there was a conviction of murder in first degree. 
The case was taken to the Supreme Court. (See Common- 
wealth vs. Alfred C. Williams, 171 Mass. E. 461.) 

I was holding court in Salem at the time of sentence, 
and was asked to pass sentence by the Chief Justice, which 
I did. 



The Teial of Commonwealth vs. Charles L. Tucker, 
EOR the Murder of Mabel Page. 

On March 31, 1904, Mabel Page was found murdered 
in the house of her father in the town of Weston. She 
was left in the house alone, and was murdered between 
eleven and one o'clock in the day time. 

The house was in plain view of other houses in the 
vicinity. As soon as the murder was made known the 
officers of the law commenced an investigation. 'No cause 
for the murder could be discovered. Miss Page was a 
young woman of excellent character. The public was a 
good deal excited. The Boston American, owned by Mr. 
Hearst in New York, had just been established in Bos- 
ton, and that paper at once commenced to publish with 
big headlines and pictures, something about the case with 
every issue — the most sensational stories — calculated to 
excite the public mind. The other Boston papers as if 
fearing that the American would get ahead in its publica- 
tions, followed suit. All the papers acted as though they 
were not bound by facts, but that the imagination could 



OF A LONG LIFE. 215 



be allowed to run, aud that rumor and suspicion must have 
full and unlimited sway. All rumors were published, 
good, bad and indifferent, and so the matter went on from 
March to January. 

In the meantime Charles L. Tucker, a young man in 
the neighborhood, had been arrested, bound over to the 
grand jury and indicted. 

The Chief Justice had assig-ned Justices Sherman and 
Sheldon to preside at the trial, and appointed, January 
2, 1905, and East Cambridge as the time and place*. 

On account of the publications aforesaid no such public 
interest in a trial had manifested itself since the trial of 
Professor Webster, unless possibly the trial of Lizzie Bor- 
den for the murder of her father and mother in 1893. 

The newspapers were impatient with the officers until 
they made the arrest of Tucker, and from that time on 
they expressed doubts about the prisoner's gaiilt. 

Herbert Parker, Attorney General, George A. Sander- 
son, District Attorney, represented the government, and 
James H. Vahey, his brother, and Charles H. Innes ap- 
peared for the prisoner. 

When the trial commenced I think the public feeling 
was perhaps that the prisoner was guilty, but the govern- 
ment had not sufficient evidence to convict him. During 
the whole trial, which lasted nearly three weeks, the news- 
papers, while professing to publish all the evidence, were 
only in fact publishing a small part of it with comments 
upon it unfavorable to the government, so that nearly the 
whole ]!^ew England public were of the opinion that there 
was not sufficient evidence to convict the prisoner. The 
prisoner, who was a young man, not bad looking, had 
much sympathy in his favor. 

*Chief Justice Mason died in the early morning of the day the trial 
commenced: the court was adjourned on the afternoon of the 4th to 
enable the justices to attend his funeral. 



216 SOME RECOLLECTIONS 

A note had been found in the house, which the murder- 
er had left telling Miss Page that her brother had been 
injured and carried to the hospital. 

The evidence was all circumstantial. The government 
claimed (1) that this note was in the handwriting of the 
prisoner, (2) that the knife (a large dirk knife) with 
which he committed the murder had been found in the 
prisoner's coat, broken in pieces by the prisoner after the 
murder, (3) with a peculiar stick pin which belonged to 
Miss Page, that (4) money had been stolen from the house, 
which was afterwards in the prisoner's possession; (5) 
that he was in the vicinity at the time of the murder, so 
that he had the opportunity to commit it, (6) that he had 
told falsehoods about his whereabouts at the time of the 
murder, about the knife, etc. 

These claims of the government were all disputed by the 
defense. If the defense had rested on the government's 
case it would not have seemed so strong as it did in the 
end. The defense put in evidence of an alibi and much 
evidence that tended to prove the prisoner's innocence, yet 
the jury evidently believed that it was not true, but man- 
ufactured. 

The charge by Mr. Justice Sheldon was a very clear and 
able one. 

The jury which was an intelligent and fair minded 
jury, after mature and careful consideration, convicted 
the prisoner of murder in the first degree. 

A motion was made to the presiding justices to set aside 
the verdict as against the evidence and the weight of the 
evidence, which, after arguments, was denied by the fol- 
lowing memorandum and decision. 



OF A LONG LIFE. 217 



Middlesex, ss. Superior Court. 

April 3, 1905. 
Commonwealth vs. Chaeles L. Tuckek. 
Decision of Court on Prisoner's Motion for a New Trial. 

The different grounds assigned as reasons why the pris- 
oner's motion for a new trial should be granted may be 
reduced to three, which we consider in the order of their 
presentation in argument. 

1. That William W. I^ason, one of the jurors, took 
and preserved some notes of the evidence given during the 
trial. The evidence relied on in support of this contention 
is contained in the affidavits of Mr. Nason, of the several 
counsel engaged in the defense and of the prisoner, and in 
an agreement as to the testimony that would be given by 
Mr. ISTason himself. We are of the opinion that if it were 
necessary to rule upon this question that part of Mr. 'Nr- 
son's affidavit which states that upon one occasion during 
the early part of the trial he referred to his notes for the 
purpose of throwing light upon some questions which two 
of the jurors were discussing, would be incompetent to 
show anything that took place in discussion among the 
jurors ; bvit as the affidavit does not state and there is no 
evidence to show that these notes or any part of them were 
read or in any way communicated to any other jurors, we 
do not think it necessary to rule upon this point. After 
examination and careful consideration of all the authori- 
ties which have been cited to us, we rule that the evidence 
does not require us as matter of law to set aside the ver- 
dict on this ground. We do not find that any of the pris- 
oner's rights have been at all affected by the taking of 
these notes, or that the action of this juror has in any way 
worked to his prejudice; and we are satisfied that no in- 
justice to him has resulted from this circumstance. We, 



218 SOME EECOLLECTIONS 



therefore, in the exercise of our judicial discretion for the 
furtherance of justice, decline to set aside the verdict upon 
this ground. 

2. It is earnestly argued that erroneous instructions 
as to what constitutes deliberately premeditated malice 
aforethought were given to the jury, the effect of which it 
is contended was to allow them to convict of murder in the 
first degree upon findings which would justify a convic- 
tion only of murder in the second degree. We have 
weio-hed carefully the considerations which have been ad- 
dressed to us upon this point and we are satisfied that the 
rulings complained of went no further than those which 
have always been given in capital cases, and in our judg- 
ment no further than a proper construction of our statute 
requires. They followed, as we believe, the rules which 
have always been observed in this Commonwealth since 
the enactment of our present statute, with no other varia- 
tion than such as was favorable to the prisoner. We think 
it would be wrong for this court now to adopt the conten- 
tion of the prisoner. If upon this question we are in 
error, it is a satisfaction to remember that the law affords 
the means of correcting our mistake; but it would be a 
weak and reprehensible shrinking from responsibility, if, 
with the views we entertain, we should now attempt to 
alter what we believe to have been for nearly fifty years 
the doctrine adopted at nisi prius in this Commonwealth. 
We cannot set aside the verdict upon this ground. 

3. It is also claimed that this verdict was against the 
evidence and the weight of the evidence, that it was a sur- 
prising verdict, that it was an unjust conviction. If these 
contentions are sound, manifestly the verdict should be set 
aside; and although it is true that the verdict was ren- 
dered by an exceptionally able and intelligent jury, after 
an unusually protracted trial and an exhaustive presenta- 



OF A LONG LIFE. 219 



tion of all the evidence that could be procured bj either 
party, that the prisoner was ably defended by counsel who 
spared no effort in his behalf, that the jury followed the 
evidence, the arguments of counsel, and the charge of the 
court with a closeness of attention which we have never 
seen surpassed, that the verdict was a result of long delib- 
eration and manifest effort on the part of the jury to reach 
the right conclusion, yet these facts could not prevent the 
court from interposing. But we must remember that all 
the arguments now relied on in support of this contention 
were enforced upon the jury in their strongest light by 
the able counsel who have so zealously and faithfully 
labored in the prisoner's behalf. The jury was, as we have 
said, an unusually able, intelligent and fair-minded panel. 
It may be doubted if more careful and painstaking jurors 
have ever sat in a capital trial. They heard all the evi- 
dence ; they saw all the witnesses ; they listened attentive- 
ly to the arguments ; they gave close and careful attention 
to the charge of the Court. The prisoner has had a patient, 
fair and impartial trial. And we feel it our duty to 
say, after going over all the evidence, that in our judg- 
ment the verdict whieh the jury have returned was well 
warranted by the evidence; that a verdict of acquittal 
would have been a failure of justice. The evidence was 
ample to justify the jury in finding that the prisoner 
was where he had the opportunity to commit this murder, 
that he was present at its commission, — a long step towards 
his conviction in view of the fact that none of the circum- 
stances, no suggestion from his own lips when he did 
speak, no contention of his counsel, and no tittle of evidence 
gave any ground for the supposition that his presence at 
the murder could have been compatible with innocence; 
that he stole from the house at that time, money and a pin, 
belonging to the victim; that he had in his possession on 



220 SOME RECOLLECTIONS 



that day shortly after the murder the knife with its 
sheath which was the instrument of the crime ; that drops 
of the blood of the victim were found upon his knife and 
his clothing; that he attempted to do away with evidence 
against himself by mutilating, destroying and concealing 
this knife and pin and by fabricating false stories concern- 
ing his doings on and after the day in question, when if 
he were innocent this conduct on his part would have been 
without any motive; that the "J. L. Morton" note was 
written by him in the Page house for the purpose of mis- 
leading future inquiry, and this without giving weight to 
any of the expert testimony upon handwriting ; and finally 
that much of the evidence produced at the trial on his be- 
half was untrue. The court closed its charge to the jury 
by urging them, in the language of Chief Justice Shaw in 
the Webster case, to weigh the evidence and return such a 
verdict as should satisfy their own judgments and their 
own enlightened consciences, and declared its confidence 
that such a verdict would be a true one. We believe that 
the jury have done this, that their verdict is a true one; 
and, so believing, we should be false to our own duty, we 
should violate our ofiicial oaths, if we took it upon our- 
selves to override their conclusion. 

The motion for a new trial is denied. 

Edgar J. Sherman and Henry IST, Sheldon, justices. 



Numerous exceptions were then filed to the rulings of 
the court during the trial, which were heard before the 
Supreme Judicial Court on oral and printed arguments. 
In due time that court, in an able and exhaustive opinion 
by Mr. Justice Hammond, overruled the exceptions, find- 
ing no error by the trial court. (See Commonwealth vs. 
Charles L. Tucker, 189 Mass. E. 457.) 



OF A LONG LIFE. 



221 



A motion for a new trial was then filed in the Superior 
Court, which was heard before Mr. Justice Sherman 
alone (as Mr. Justice Sheldon had in the meantime been 
promoted to be a justice of the Supreme Judicial Court). 
After full hearing the motion was overruled by the fol- 
lowing : — 



Middlesex, ss. Superior Court. 

January 22, 1906. 
Commonwealth vs. Chaeles L. Tuckee. 

Decision of Mr. Justice Sherman upon the prisoners 
Motion for a new trial. 

The defendant seeks a new trial upon two grounds: — 

First, because of error at the trial in that the govern- 
ment was allowed to introduce evidence that the prisoner 
was without money before the murder, that he was pos- 
sessed of it afterwards, and that there was no evidence that 
money was missing from the Page home. 

This question was passed upon by the Supreme Court, 
which decided that there was no error on the part of the 
trial court. The prisoner then, as his counsel states, asked 
for a re-hearing before that court, upon the ground set 
forth in this motion, — which was denied; and now this 
court is asked to overrule a solemn and unanimous opinion 
of the Supreme Judicial Court on account of this alleged 
error in law. But this court is bound by the decisions of 
that court. 

The counsel for the prisoner say in their request for 
rulings in this hearing: "From a careful reading of the 



222 SOME KECOLLEOTIONS 

opinion of the Supreme Judicial court it is clear that the 
defendant's exceptions as to this evidence would have been 
sustained, except for the clause aforesaid, at the end of the 
bill of exceptions". On the contrary, in the very next 
paragraph of that opinion, the Court says: "But whether 
or not there was such evidence is not material to the in- 
quiry before us". 

It is apparent that the Commonwealth relied upon the 
fact that money was stolen from the Page house; that the 
trial justices both believed that there was such evidence, 
and Mr. Justice Sheldon vividly called the attention of the 
prisoner and his counsel to that fact in his charge to the 
jury, as follows: 

"The claim of the Commonwealth is that he (the de- 
fendant) might have been there (in the Page house), that 
he carried from that house upon his knife and his clothing 
stains of the blood of his victim ; that he stole money from 
her pocket book " 

And in another part of the charge as follows: 

"So, too, as to the claim that he stole money from Miss 
Page's pocket book. It is claimed that shortly before the 
murder he was in great want of money, selling and pawn- 
ing whatever he could to raise money for the purpose of 
going to St. Louis; that money, at least, a ten dollar bill, 
was stolen from Miss Page's pocket book, and that imme- 
diately after the murder the prisoner was in the possession 
of such money". 

If the counsel for the prisoner then believed, that there 
was no such evidence, and this claim is not an after- 
thought, then it appears that they saw fit not to call this 
claim to the attention of the court during the trial, so that 



OF A LONG LIFE. 223 



a mistake of fact, if any, could then and there have been 
corrected. 

But there was some evidence of loss of money from the 
Page house, the weight and value of which was entirely 
for the consideration of the jury. 

The second ground of the motion is on account of alleged 
newly discovered evidence. 

Some of the evidence offered is hearsay and clearly in- 
competent, and the balance is cumulative. 

This evidence, in my opinion, would not have changed 
the verdict had it been offered at the trial. 

After a careful and prolonged trial, before an able, fair- 
minded and impartial jury the defendant was found 
guilty. 

A motion was made before the trial court to set aside 
the verdict as not warranted and as against the evidence. 
After a full hearing the presiding justices overruled that 
motion, stating that the verdict was fully authorized under 
the evidence, and that an acquittal would have been a mis- 
carriage of justice. 

The case was then taken before the Supreme Judicial 
Court on numerous exceptions taken at the trial. 

That court, after hearing counsel in a prolonged oral 
argument and by the submission of an elaborate printed 
brief, has found no error in the proceedings, or at the 
trial. 

The prisoner has had all his rights carefully guarded 
and preserved for him, and he is not entitled to a new 
trial, and, in the exercise of my discretion, I overrule his 
motion. 

On the 27th day of January, 1906, the attorney moved 
that sentence be passed upon the prisoner. 

In the Superior Court at East Cambridge, January 27, 
1906, the prisoner, Charles L. Tucker, was brought into 
Court, and the Attorney General moved for sentence. 



224 SOME KECOLLECTIONS 

(Judge Sherman imposes sentence). 

The clerk asked the prisoner if he had anything to say 
why the sentence of death should not be passed upon him. 
He replied in the negative. 

Sherman, Judge. Charles L. Tucker, on the thirty-first 
day of March, 1904, an innocent woman of spotless char- 
acter was murdered while alone in her own house in the 
quiet town of Weston. The officers of the law, in the per- 
formance of their duty, commenced a careful and pains- 
taking investigation to ascertain and discover the mur- 
derer. It was soon evident that the murder was not com- 
mitted by a tramp or a stranger, but by some one who 
knew the family and was well acquainted in the vicinity. 

The officers investigated every rumor, followed every 
possible suggestion and clue, until the evidence pointed so 
strongly to you that they could delay no longer ; you were 
arrested and subsequently indicted. 

Able counsel were appointed to defend you. From that 
time to this they have labored unceasingly and tirelessly, 
and have expended a larger amount of the public money 
in your behalf than was ever expended before in a capital 
trial in this Commonwealth. 

After a careful and prolonged trial, before an able, im- 
partial and fair-minded jury, you have been found guilty, 
the jury after mature deliberation, decided that you were 
the man who used the knife and committed the murder, 
but upon the question of degree they asked the Court for 
further instructions. After fully understanding the law 
in this respect, they declared you guilty of murder in the 
■first degree. 

Subsequently, your counsel asked the presiding Justices 
to set aside the verdict of the jury, as not warranted and as 



OF A LONG LIFE. 225 



against the evidence and the weight of the evidence. After 
full hearing the Justices were obliged to refuse and deny 
said motion. 

Since then the case has been reviewed by the Supreme 
Judicial Court, the highest court in this Commonwealth, 
and that court has found no error in the proceedings or at 

the trial. 

Eecently this court has heard, considered and overruled 
a second motion for a new trial. 

Your conviction for the great crime of murder, in the 
:first degree, has been sustained as proper, lawful and just. 
When this murder was first discovered the public was 
greatly excited. Great anxiety was manifested for the 
arrest and conviction of the murderer, and great sympathy 
was expressed for the family of the victim. 

ISTine long months passed before you were put upon 
your trial. In the mean time Mabel Page had been 
buried and partially forgotten, and sympathy turned some- 
what from the dead to the living. 

When you left the lifeless body of Mabel Page on the 
floor of the Page house that day, you carried away with 
you many mute and silent witnesses of your guilt, enough 
with the other evidence in the case, to satisfy a jury of 
your peers, "twelve good men and true", beyond a reason- 
able doubt of your guilt. 

I believe that many crimes are committed because their 
perpetrators have not understood the force and effect of 
circumstantial evidence. 

I feel confident that many murderers would have been 
deterred and prevented from committing their great 
crimes if they had known what Chief Justice Shaw and 
other great judges and lawyers have often declared, — that 
circumstantial evidence may well be full as safe and satis- 
factory to prove the guilt as what is called direct evidence. 



226 SOME KECOLLECTIONS 

The frequent declarations against such evidence by men 
who hardly know what such evidence is, and who can know 
but little about it from observation or experience, I fear 
lead men to commit crime with a belief that, if no wit- 
nesses are present, there can be no convictions. 

I am sorry for your family and I pity you, that you 
have come to this tragic end. But I am compelled to say 
that it is hard to imagine a more wanton, wicked and 
causeless murder than this, of a virtuous and blameless 
woman. 

You stand here now for sentence; and it becomes my 
painful duty, as a magistrate and minister of the law, ta 
pass sentence upon you. 

It is considered and ordered by the Court, that yoUy 
Charles L. Tucker, shall be taken to the jail in this county, 
and there kept in close custody until within ten days 
prior to Sunday, the tenth day of June next, when you 
shall be removed to the State Prison in Boston, in the- 
County of Suffolk, and there kept in close confinement 
until the said tenth day of said June, when, within the 
week beginning on said last day, you shall suffer death by 
the passage of electricity through your body; and this is 
the sentence required by law. 

Application was made to a judge of the Supreme 
Court of the United States (Mr. Justice Harlan) to grant 
a stay of execution, alleging that a Federal question was 
involved, but that judge after considering the question, de- 
cided that no such question was raised and refused to grant 
a stay. 

A petition was then presented to the Governor and 
Council to commute the sentence to imprisonment for life^ 
numerously signed, and asking a hearing before the Gov- 
ernor and Council, claiming that the Governor was 



OP A LONG LIFE. 227 



obliged to submit the same to the Council. The Governor 
decided that he was not obliged to do so, but the Governor 
and Council submitted that question to the Supreme 
Judicial Court. That Court decided (see opinion of the 
Justices, 190 Mass. R. 616) that the Governor was not 
obliged to submit the petition to the Council. 

The Governor subsequently gave the petitioners a full 
hearing. After hearing the evidence and arguments of 
the prisoner's Counsel the petition was refused. 



To the Petitioners for the Commutation of the Sentence 
of Charles L. Tucker: 

I have given to your petition and to the case of Charles 
L. Tucker, convicted of the murder of Mabel Page, the 
most careful consideration. Some time since I began my 
own investigation of the case. 

I have read all the evidence presented in the lower court 
and the official stenographic report (2696 pages) of the 
proceedings in the Superior Court, together with various 
affidavits and reports submitted to me. 

I have given a lengthy hearing to the counsel for the 
prisoner and to all witnesses as to fact whom they chose 
to summon, even when the testimony offered was such as 
could not be heard in a court of justice, recognizing that 
the Governor, on a plea of clemency, is not bound by tech- 
nical laws of evidence. I have personally examined the 
neighborhood of the murder and have on foot passed, with 
time tests, over the roads and ways about the Page house 
in Weston and at about the hour of the day when the mur- 
der was committed. I have examined all the various ex- 
hibits in the case, and have myself fitted the blade of the 
knife of Charles L. Tucker into the slit in the blood-stained 
corset of Mabel Page. 

I have no right, remembering my oath to enforce the 
laws of this Commonwealth, to consider my own or other 



•228 SOME RECOLLECTIONS 



men's opinions of the character of those laws or to stay 
the execution of any law because of my opinion or of any 
other man's opinion. I have no right to refuse to enforce 
the law in regard to capital punishment on the ground that 
that law is abhorrent to any person or persons. 

In considering so serious a case all prejudice should be 
removed and evidence carefully sifted. Irresponsible talk 
in regard to the manner in which the prisoner's wife met 
her death in his company can be given no more considera- 
tion than similar irresponsible talk of unidentified persons 
in Connecticut who looked as if they might have com- 
mitted some crime somewhere. 

Charles L. Tucker was arrested for the murder of Mabel 
Page, April 9, 1904. He was conveyed to the !N'ewton 
Police station and was arraigned at once before the Wal- 
tham Police court. As a result of a hearing before Judge 
Luce the prisoner was bound over to await the action of the 
Orand Jury. 

On June 9, 1904, the Grand Jury found an indictment 
against the prisoner. On June 16th he was arraigned and 
pleaded not guilty. Counsel were assigned him. Their 
first act was a motion to quash the indictment. This was 
overruled. A motion was then filed to withdraw the pris- 
oner's plea to the indictment, which motion was denied. 
On January 2, 1905, the prisoner was tried in the Supe- 
rior Court of Middlesex before a jury that has been aptly 
described as one of the most intelligent that ever sat in 
Massachusetts. Scores of talesmen were summoned and 
every possible right of challenge used to the uttermost by 
the prisoner's counsel. Every technicality of the law that 
could be used was used to prevent the introduction of evi- 
dence hostile to the prisoner. Yet this jury found him 
guilty of murder and in the first degree. 

His counsel thereupon filed a motion for a new trial, 
which motion was denied. In refusing the new trial the 
justices found "That in our judgment the verdict which 
the jury has returned was well warranted by the evidence ; 
that a verdict of acquittal would have been a failure of jus- 
tice". 



OF A LONG LIFE. 229 



Thereupon the prisoner's counsel filed various excep- 
tions to the rulings of the presiding justices. These were 
considered by the Supreme Judicial Court of the Com- 
monwealth and were overruled. 

A second motion for a new trial was then made by the 
prisoner's counsel. This motion was likewise overruled, 
January 22, 1906. An application for a writ of error 
was then made to the Supreme Court of the United States. 
This application also was denied. Finally an appeal was 
made to the Governor and Council with the contention that 
the Governor must of necessity refer all such petitions to 
the Council. This contention was declared erroneous by 
an opinion of the Justices of the Supreme Court of the 
Commonwealth. They also confirmed the view of the Gov- 
ernor, that the Chief Executive has the right to ask the 
advice of any citizens in regard to any matter at any hear- 
ing he may hold. 

Accordingly, at the hearing before me at the Executive 
Chamber, Justices Sheldon and Sherman, who occupied 
the bench during the trial, were present at my invitation. 
They have reported as follows on the evidence offered: 



"To His Excellency the Governor: 

After carefully considering the testimony to which we 
listened yesterday, we respectfully report as follows: 

A large part of this evidence was the merest hearsay, 
and could not have been considered in court. Much of this 
and also of the other evidence was only conjectural. The 
comparatively small portion that could have any legitimate 
bearing was cumulative, and not of a character that seemed 
to us to command confidence or to warrant any expecta- 
tion that if produced at the trial it properly could have 
brought about a different result from that which was 
reached. We cannot find that there would now be any ma- 
terial change in the testimony of the medical experts. We 
heard nothing to meet the strong evidence of guilt whicb 
was offered at the trial. 



230 SOME RECOLLECTIONS 

Accordingly, if this were a question of setting aside the 
verdict of the jury, we should be unable to do so. 

Very respectfully, 

Your obedient servants, 

Edgae J. Sherman, 

Heney N^. Sheldon. 

Boston, June 6, 1906". 



"This important report commands serious considera- 
tion. 

The attempt at the hearing before me to offer a literary 
parody as evidence against the law officers of the Common- 
wealth but emphasizes their faithful, fair and intelligent 
services. 

No medical authority who actually himself saw the 
wounds on the body of Mabel Page has ever wavered in his 
statement that they might have been made by a knife of 
the exact measurement of that which Tucker had tried to 
destroy, but which was found in fragments before he had 
time to dispose of them, in the side pocket of his coat, in 
company with a stick pin, sworn to have belonged to his 
victim. Men do not habitually carry stick pins loose in 
the side pockets of their coats. If this were one of the 
various pins that really did belong to Tucker, it is extra- 
ordinary that it should have been found in such an unusual 
place in company with fragments of a knife which he con- 
fessed he was trying to destroy, because they might be used 
to incriminate him. Why, regardless of ownership, was 
he trying to hide that pin ? 

A discussion of all the numerous points of evidence in- 
criminating the prisoner is unnecessary. They are a mat- 
ter of record. 

Every decision handed down by every judicial authority 
to whom disputed questions of law have been referred has 
affirmed the correctness of the rulings in this case. N'ot 
only did every member of that jury, to whom the original 
evidence, ungarbled and undistorted, was presented, find 



OF A LONG LIFE. 231 



the prisoner guilty, but the Judge who pronounced sen- 
tence upon him, after every possible appeal to the judicia- 
ry had been exhausted, declared the verdict of murder in 
the first degree 'proper, lawful and just'. He even added : 
*It is hard to imagine a more wanton, wicked and causeless 
murder than this of a virtuous and blameless woman'. 

The causes usually urged for mercy to a convicted crim- 
inal are either extreme youth, notable public service, in- 
tense provocation, or a previously blameless life. I^o such 
plea can be entered for the prisoner. He is not a boy. 
Men of no greater age than his at the time of the murder 
have served in National Parliaments and commanded 
armies that have changed the destinies of the world. ]!!^ot 
only is no claim of public service made for the prisoner, 
but he never rose or remained for any great length of time 
in any private employment. I^either Mabel Page nor any 
of her family had ever wronged him or his. His habits of 
life as disclosed to me by investigation, through official 
and other sources, seem almost impossible to one whose 
bitter duty it is to resist the appeals of his clear-eyed 
brother, his sorrowing mother and his father, honored and 
respected of all men. 

I must, however, remember that other home : a pure and 
lovely girl murdered in a lonely house ; a father martyred 
by sensationalism, a devoted sister driven to the verge of 
nervous prostration, and a faithful working girl persecuted 
by threats of bodily harm. 

Proof of the miserable habit of life of this unhappy 
young man as disclosed by incidents in connection with 
this trial is confirmed by my own independent investiga- 
tion. 

The search warrant, prepared though not used, against 
Tucker did not specify the knife used in the murder, but 
did specify certain goods stolen on other occasions by the 
prisoner which were returned to their owners, chiefly by 
the prisoner, before his arrest. 

The same plea, of having returned the fruits of a crime 
after its commission, has been publicly made to excuse the 
prisoner for and admitted forgery. 



232 SOME RECOLLECTIONS 



At the hearing before me the prisoner's counsel asserted 
that the prisoner on the day of the murder "committed an 
offence with Mabel Walker". 

The evidence in the lower court, later confirmed by ex- 
pert medical evidence summoned by both sides, furnishes 
uncontested proof that the prisoner was not accustomed 
to recognize even the bounds established by nature in the 
gratification of his passions. 

In common with every other responsible person in this 
case, sworn to act in accordance with his convictions as to 
the prisoner's guilt or innocence, I am compelled to an un- 
doubting belief in his guilt. 

Neither, therefore, on the ground urged that the verdict 
was unwarranted by the evidence, nor on the grounds usu- 
ally urged, can I interfere with the execution of this just 
sentence. Every citizen must sympathize and sorrow with 
this unhappy man's afflicted family, but of more impor- 
tance than the life of any one citizen is the protection by 
government of the life of every citizen, is the safeguarding 
of woman's chastity in the lonely farmhouse as well as in 
the patrolled streets of the city, is the assurance to the peo- 
ple that the ordered action of their courts is to be respected 
and that irresponsible agitation cannot be substituted for 
law and order in this Commonwealth. 

This melancholy chapter in our history may not have 
been written in vain if it serves to warn the youth of our 
Commonwealth, tempted by the allurements of vice to 
ignoble life, that the wages of sin is death, if it serves to 
show that government in Massachusetts still stands on the 
rock of her own Constitution to the end that it may be 'A 
government of laws and not of men'. 

CuKTis Guild, Jr. 

Executive Chamber, 

State House, Boston, 
June 7, 1906". 



The prisoner was executed in accordance with sentence. 



OF A LONG LIFE. 233 



After the execution of Charles L. Tucker, a statement, 
purporting to come from James H. Vahey, his senior coun- 
sel, was published in the newspapers, explaining, or giv- 
ing a reason, why the prisoner. Tucker, was not put upon 
the witness stand, as follows: 



(Boston Daily Globe, June 12, 1906. Third page, first 
column.) 

"James H. Vahey, senior counsel for Charles L, Tucker, 
made the following statement this morning, when he 
learned that Tucker was dead: — 

The failure of the defendant to testify has also been a 
subject of much comment and we feel that the public ought 
to know exactly what the reasons were for the defendant's 
failure to testify. 

This question gave us great concern throughout the 
trial and up to the moment when it was definitely deter- 
mined that the prisoner would not testify. While the 
whole matter had remained in abeyance, I think we all 
had a feeling that the defendant would take the stand. 

The evidence in the case was concluded on Saturday, 
January 21. On Friday, January 20, all the evidence had 
practically been presented, except that of the defendant, if 
he were to testify, and the court had adjourned a little 
earlier that day in order that we might have some farther 
time to reflect on that subject. I do not know that I state 
the things in their chronological order, but the substance 
of the various interviews follows : 

Judge Sherman asked me if I wanted any advice from 
him on the matter. I said I would be glad to receive it. 
He told me that he thought it advisable from long experi- 
ence to state all the reasons for and all the reasons against 
his testifying to the defendant and his people and let them 
decide. 



234 SOME KECOLXiECTIOlvrS 



I talked with one of the best criminal lawyers in Massa- 
chusetts that same evening for two hours and his advice 
substantially coincided with Judge Sherman's". 

The undersigned, except for that statement, would not 
feel called upon to make the following 



MEMORANDUM. 

James H. Vahey, during the trial of Charles L. Tucker 
for the murder of Mabel Page, entered the Judge's Lobby, 
after the adjournment of court, Judges Sherman and Shel- 
don, Sheriff John R. Fairbairn and Mr. Vahey, being 
present, the following conversation then took place. 

Mr. Vahey. Judge Sherman, you having had a large 
experience as Attorney General and as a Justice of this 
Court in capital trials, I want to ask your advice, as I have 
had little or no experience in such cases and am a good 
deal embarrassed. 

Judge Sherman. If I can properly advise you, I will. 

Mr. Vahey. Shall I put the prisoner on the witness 
stand ? 

Judge Sherman. I do not think it would be proper for 
me to answer that question. 

Perhaps I can tell you what the rule and practice is 
among the best lawyers in such cases. If the attorney 
believes his client innocent, put him on the witness stand 
without hesitation. If, however, he believes him guilty, 
never put him on the witness stand. If the prisoner in- 
sists upon being a witness and the Attorney believes him 
guilty, the Attorney should say to him: 'I advise you not 
to testify, but as you have more interest in the case than 
I have, I shall not interfere'. 

What do you say. Judge Sheldon ? 

Judge Sheldon. I fully concur in what you say about 
the practice among the best la^vyers in such cases. 

Mr. Vahey. I thank you, gentlemen, for advising me. 

Some days after, Mr. Vahey again entered the Judge's 
Lobby and said: 



OF A LONG LIFE. 235 



After our interview the other evening, I told Tucker 
what you said to me concerning his being a witness. 

After talking with him a long time, I told him to think 
it over carefully and then decide what to do. 

Subsequently he told me that he had decided not to be 
a witness, and thereby he relieved me of a great responsi- 
bility, and I did not have to advise him. 

Edgar J. Sherman, 
H, 'N. Sheldon, 
John R. Fairbairn. 



I did not ask Mr. Vahey if he wanted me to advise him 
about Tucker's being a witness. The only conversation I 
ever had with him on that subject is stated in the above 
memorandum. 



Edgar J. Sherman. 



CHAPTER XIII. 



EXCUESIONS AND MEETINGS WITH 
FAMOUS MEN". 



The Vermont Association of Boston is an organization 
of men and women born in Vermont and living in Boston 
and vicinity. It was organized in 1887. 



The Presidents were as follows ; 

Hon. H. O. Houghton, . 
Hon. Walbridge A. Field, 
Hon. Alanson W. Beard, 
Hon. Alden Spear, . . 
Hon. William E. Fuller, 
Hon. Edgar J. Sherman, 



1887- 
1894- 
1896- 
1897- 
1899- 
1900- 



1893 
1895 
1897 
1899 
1900 
1903 



The fifteenth annual report of the Association, 1901, 
at a meeting at Young's Hotel, April 8, 1901, proceeds as 
follows : 



Peesident Suggests a Teip to Vermont. 

President Sherman then suggested the advisability of 
the Association's making a trip to the Vermont Old Home 
Week, and of holding the annual banquet at some point in 
that state. This matter was discussed at some length, and 



\ 



OF A LONG LIFE. 237 



Mr. Arthur L. Robinson, of the Executive Committee, gave 
the Association a very cordial invitation to a trip on Lake 
Champlain and a dinner near his old home, South Hero. 

At the close of the discussioa, the President asked for 
a show of hands of those who favored the plan of such a 
trip Old Home Week, and it was the unanimous opinion 
that such a trip, if feasible, would prove to be of special 
interest to the members of the Association. 

Plans were sufficiently matured so that August 1 the 
Secretary was able to issue a circular of information con- 
taining the following itinerary : — 



Itinekaey of Old Home Week Teip. 
Tuesday, August 13. 

Party to leave the ]N"orth Union Station, by special 
train, via Boston & Maine Railroad, at 9.30 A. M., arriv- 
ing at the state line White River Junction, at about 12.30 
P. M. Proceed to Montpelier under escort of Gen. W. H. 
Gilmore, of the Governor's Staff, Members of State 
Old Home Week Association, Montpelier Old Home Week 
Association, and Burlington Old Home Week Association, 
and arriving there about 2.00 P. M. Lunch at the pa- 
vilion, to be given by the Montpelier Old Home Week As- 
sociation, to be followed by a reception at Executive Cham- 
ber, State House, by Governor and Mrs. Stickney. Band 
concert on State House grounds. Leave Montpelier for 
Burlington at about 4.30 P. M., under escort of Mayor 
Hawley of Burlington and members of Burlington Old 
Home Week Association, arriving at Burlington at about 
6.30 P. M. Headquarters of the Association at the Van 



238 SOME EECOLLECTIONS 

Ness House. Band concert at City Hall Park. Short 
carriage drives about Burlington, by those who desire 
them, Tuesday evening. 



Wednesday, August 14. 

From 8.30 to 10.30 A. M., carriage drives about Bur- 
lington; 10.30, embark on steamboat Keindeer for trip on 
Lake Champlain; 12.00 M., annual meeting of the Asso- 
ciation on board steamboat Reindeer; 1.00 P. M., annual 
dinner of the Association, given by Mr. Arthur L. Robin- 
son, on one of the most beautiful islands of Lake Cham- 
plain, to vrhich Governor Stickney, United States Sena- 
tors Proctor and Dillingham, Congressmen Haskins and 
Foster, and other prominent Vermonters, will be invited ; 
3.30 P. M., embark on Reindeer for return trip to Bur- 
lington, arriving about 5 P. M. ; 8 P. M., reception and 
ball by Burlington Old Home Week Association, at the 
Billings library. 



Thursday, August 15. 

Carriage rides about Burlington and return to native 
towns, at which Old Home Week exercises are to be held, 
in most instances, on Friday, August 16. 

According to the foregoing schedule, a party of about 
one hundred and sixty boarded a special train at the North 
Union Station, on the morning of August 13, under the 
direction of Mr. Thomas H Hanley, New England Passen- 
ger agent of the Central Vermont Railway. It was a ves- 
tibule train, made up of four Pullman parlor cars, one 
regular day coach, one smoking car and one baggage car; 



OF A LONG LIFE. 



239 



and the party consisted of members of the Association and 
their friends. 

The weather being of the finest, the members of the 
party in their happiest moods, at the thought of going 
back to the old home, and being comfortably seated in the 
spacious accomodations furnished, could indeed say with 
that Vermont bard, Saxe, 

"Singing through the forests. 
Rattling over ridges, 
Shooting under arches, 
Rumbling over bridges, 
Whizzing through the mountains. 
Buzzing o'er the vale — 
Bless me! This is pleasant — 
Riding on the rail". 

A most pleasant feature of the occasion was the official 
greeting extended the visitors at the state line. White 
River Junction, by a general reception committee, ap- 
pointed for the purpose, representing the executive and 
legislative departments of the State Government, the 
Federal Government, and the Vermont Old Home Week 
Associations of the cities of Montpelier and Burlington, 
and the Central Vermont Railway Company. This com- 
mittee was made up as follows: — 



Representing the Governor: Adjutant General W. H. 
Gilmore, of Fairlee. 

Representing the State Government: Hon. Martin F. 
Allen, of North Ferrisburg ; Hon. Fletcher D. Proctor, of 
Proctor. 

Representing the Federal Government: Hon. James L. 
Martin, of Brattleboro ; Hon. Fred A. Field, of Rutland ; 



240 SOME RECOLLECTIONS 

Hon. Olin Merrill, of Enosburg Falls; Hon. Z. M. Man- 
sur, of Newport. 

Representing the Vermont Old Home Week Associa- 
tion : Colonel Charles S. Forbes, of St. Albans ; Hon. Elias 
Lyman, of Burlington; Colonel Thad E. Chapman, of 
Middlebury; Hon. Charles H. Darling, of Bennington; 
Hon. E. M. Bartlett, of Island Pond ; Hon. N. W. Fiske, 
of Isle La Motte ; Hon. Roger W. Hulburd, of Hyde Park ; 
Colonel Curtis S. Emery, of Chelsea ; Mr. Seymour Lane, 
of i^^ewport; Colonel Henry O. Carpenter, of Rutland; 
Hon. Hiram Carlton, of Montpelier; Mr. E. H. Porter, 
of Wilmington ; Mr. E. J. Wallace, of White River Junc- 
tion. 

Representing the City of Montpelier: Hon. Joseph G. 
Brown, Mayor; Hon. William P. Dillingham, Hon. Ben- 
jamin F. Fifield, Hon. Fred A. Howland, Hon. Joseph A. 
DeBoar, Mr. James M. Boutwell, Mr. L. Bart Cross. 

Representing the City of Burlington: Dr. D. C. Haw- 
ley, Mayor; Hon. U. A. Woodbury, Hon. D. J. Foster, 
Colonel F. E. Burgess, Mr. J. B. Henderson, Mr. B. J. 
Derby. 

The journey of the reception committee to White River 
Junction was made in a special train, provided through 
the courtesy of Mr. R. S. Logan, Vice President and Gen- 
eral Manager of the Central Vermont Railway Company. 
It consisted of the official car "Mansfield", a coach, and 
the observation engine "St. Lawrence". 

The members of the Vermont Association were cordial- 
ly welcomed by the several reception committees upon their 
arrival at White River Junction, the exercises being 
wholly informal. Senator William P. Dillingham voiced 
the greeting on behalf of the general committee, and Pres- 




MRS. EDGAR J. SHERMAN 
(The Judge's first Wife.) 



OF A LONG LIFE. 241 



ident Edgar J. Sherman responded thereto for the Asso- 
ciation. 

General Gilmore then, in behalf of the Governor and 
in token of the welcome he wished to extend to each mem- 
ber of the Association, presented each one with sprigs of 
red clover, the State flower. 

The two special trains were then united and the trip 
through the state began over the Central Vermont line. 
The party arrived in the State Capital at 4 P. M. 

The City of Montpelier was beautifully decorated with 
flags, banners and bunting, and as the visitors alighted 
from the special train, the Montpelier Military Band dis- 
coursed its choicest strains. 

Major J, G. Brown, escorting President Sherman of 
the Boston Association, headed the procession which 
marched to the pavilion dining rooms, where a bountiful 
lunch, arranged by a committee consisting of Colonel O. 
D. Clark and R. C. Bowers, was served. After the guests 
had been refreshed with their lunch they repaired to the 
State House, where an informal reception was held in the 
Executive Chamber. The receiving party consisted of Gov- 
ernor W. W. Stickney, Mrs. Stickney, Lieutenant Gov- 
ernor M. F. Allen, Judge Edgar J. Sherman, of Boston, 
Mrs. Sherman, Hon. W. P. Dillingham, Hon. D. J. Fos- 
ter, Mayor J. G. Brown, of Montpelier, and Mayor D. C. 
Hawley, of Burlington. 

The guests were presented by the following introduction 
committee : — 

Adjutant General W. H. Gilmore, Surgeon General W. 
D. Huntington, Colonel F. E. Burgess, Colonel J. C. Coo- 
ledge, :N". L. Sheldon, Esq., Hon. J. A. DeBoar, Hon. Elias 
Lyman, Colonel C. S. Emery, Colonel C. S. Forbes, Mr. 
Robert T. Phinney. 



242 SOME EECOLLECTIONS 



A delightful social hour was enjoyed by all. The party 
then took their train and proceeded to Burlington, which 
was reached about 6.45 P. M. The next day was spent 
on the Lake with a dinner on Grand Isle. 



Reception at Billings Libraky. 

The festivities of the day came to an end with a re- 
ception at the Billings library in the evening. About 
three hundred people were present, half of the number 
being residents of Burlington, who found pleasure in mak- 
ing the acquaintance of former Vermonters. The guests 
were received by President Sherman of the Association, 
Mrs. Sherman, Mayor and Mrs. Hawley, Hon. and Mrs. 
Elias Lyman, Ev-Governor U A. Woodbury, Mrs. K. L. 
Sheldon, and Colonel F. S. Burgess. The ushers were 
General T. S. Peck, Mr. D. W. Robinson, Colonel H. W. 
Allen, Mr. Robert :Nroble, Mr. C. S. Van Patten and Mr. 
r. A. Richardson. 

Shortly after nine P. M. the company found seats in the 
auditorium, and President Sherman stated that it had 
been decided to have a few short speeches. He spoke of the 
formation of the association and of some of the prominent 
Vermonters who had been connected with it. He felt that 
the members of the association had been most hospitably 
entertained, and that the visit during the first Old Home 
Week had been such a success that they would be up here 
fully four hundred strong next year. 

President Sherman then called upon Mayor Hawley, 
who with Congressman David J. Foster, and ex-Governor 
Woodbury, made interesting and appropriate speeches. 

Light refreshments were then served, and the remainder 



OF A LONG LIFE. 243 



of the evening was spent most delightfully. A large party 
"tripped the light fantastic toe" to the music of the How- 
ard Opera House orchestra, till the "wee sma' hours" 
came, while others improved the rare opportunity of social 
intercourse, and all reluctantly left that seemingly charmed 
spot of the evening's festivities. 

Early the next morning, the party separated, several 
members going on a trip to Ausable Chasm and other 
points of interest on and near Lake Champlain, while 
others went to their native towns to enjoy Old Home Week 
festivities on Friday. 

Thus closed the programme, as laid out by the executive 
committee, of the first Old Home Week trip to Vermont, 
and it was the unanimous opinion of all in any wise par- 
ticipating in the trip that it had been a most enjoyable 
occasion, and, while an innovation in the proceedings of 
the association, it must be pronounced an unqualified 
success. 

Mrs. Sherman was taken serously ill before she reached 
home and died within a week. 

The annual report of the association closed as follows : — 

"Following this occasion, so full of joy and pleasure, 
within one short week's time, came that saddest of sad 
news, of the death of Mrs. Sherman, wife of the esteemed 
President of the association. Mrs. Sherman, being of a 
most happy disposition, was the life of the party, and 
added materially to the pleasure of the trip, and she will 
always be of most pleasant memory to all who were so 
fortunate as to make her acquaintance. 

Her happy disposition and joyous countenance will ever 
be an inspiration to all, and a constant reminder that, 
truly, 'In the presence of life is death', and that to live 
this life as did she is to be ever ready for the life that is to 
come". 



244 some recollections 

The Celebkation of the Fiftieth Anniveesaky of 
THE Settlement of Lawkence. 

Second Regular Toast. 

"TJie Commonwealth of Massachusetts \ 

(Responded to by Judge Sherman of the Superior Court). 

It is an honor to speak for the Commonwealth as the 
representative of two and a half million of people; a 
State which is foremost in all that goes to make a great 
State, possessing a wealth in taxable property of two and 
one-half billion of dollars, which amount is so well dis- 
tributed among her citizens as to have, belonging to her 
industrial and laboring classes, deposited in her savings 
banks four hundred and seventeen million of dollars; a 
Commonwealth which provides for and requires the educa- 
tion of all her children, whose citizens are so peaceable 
and law-abiding, that strikes with violence and mobs are 
of rare occurrence. 

A State which showed the loyalty and patriotism of her 
citizens in the War of the Rebellion by furnishing for the 
army and navy over one hundred and sixty thousand sol- 
diers and sailors and in sustaining a loss of nearly 
fourteen thousand in killed and of those who died of 
wounds and disease; a State which has paid out of its 
treasury to the soldiers and their families, during the war 
and since, over forty millions of dollars. 

The Commonwealth is composed of thirty-one cities and 
three hundred and thirty towns, and the City of Lawrence 
is the ninth in population. She, today, is celebrating her 
fiftieth birthday, and we are invited to the feast. Coming 
then, in behalf of the Commonwealth, to extend congratu- 



OF A LONG LIFE. 245 



lations, we find she has a population of over fifty-two 
thousand people; a wealth in taxable property of over 
thirty-three millions of dollars; that her wealth is dis- 
tributed among the masses, and so that her laboring and 
industrial classes have deposited, in our savings banks, 
over nine millions of dollars; that her citizens are enter- 
prising, successful and contented. She was loyal and pa- 
triotic during the war, and furnished for the army and 
navy nearly three thousand soldiers and sailors. 

Lawrence not only furnished more than her quota of 
soldiers, but she has done well in furnishing statesmen for 
the country. Since she became a city, she has furnished 
for the Congress of the United States three of her citizens, 
Hon. William A. Russell, who represented this district 
for three terms, serving for a part of that time upon the 
Committee of Ways and Means of the House of Repre- 
sentatives, and doing much for the manufacturing interests 
of our city; Hon. John K. Tarbox, whose memory will 
ever be cherished in all our hearts, who served for one 
term; and Hon. William S. Knox, who was elected last 
year, and who, we believe, will ably represent our interests 
in the next Congress. We might also claim, Hon. Moses 
T. Stevens, of Ward Seven (North Andover), who so faith- 
fully represented our interests for the last four years. 
Lawrence has also furnished officials for the Common- 
wealth; an Attorney General, a Justice of the Superior 
Court, a member of the Governor's Council, two Insurance 
Commissioners, Hon. John K. Tarbox, and Major George 
S. Merrill, who together have made the insurance depart- 
ment outrank those of all other States in the Union. We 
have also furnished for the County of Essex many officers, 
notably among them a Sheriff, in the person of Captain 
H. G. Herrick, who served in that office for a period of 
nearly thirty years. 



246 SOME RECOLLECTIONS 

Looking down these tables and observing the orators 
and statesmen, I feel authorized in saying, that Lawrence 
is willing to do much better in the future; she volunteers 
to furnish in the future, men for Governors, Lieutenant 
Governors, Councillors, Congressmen and State officers, 
without number, and I feel quite confident, if she does not 
have an opportunity to furnish her share, you will hear 
what the father told his son was sometimes heard. The 
boy said, "Father, what are those men doing who are hold- 
ing up their right hand" ? "Being sworn into office", re- 
plied the father. "Are they obliged to swear when they 
go out of office" ? asked the son. "ITo" ; replied the father, 
"but they sometimes do". 

In looking at the record of the municipal affairs of the 
city, I think I can speak with impartiality, as I never 
held a city office. The offices have been held, a part of the 
time by one party, and a part of the time by the other, 
the honors are about easy, and the tide of good government 
has ebbed and flowed, sometimes it has been high and some- 
times low, but the "record" has been made and must 
stand, no matter if, like the old sea captain, you are not 
satisfied with it. The mate of the ship was an excellent 
officer, and had but one fault. Once in six months be 
would become intoxicated. On one of these occasions, the 
captain wrote in the log-book, "The mate is drunk to- 
day". When the mate saw the entry, he said to the 
captain, "Did you write that" ? "Certainly I did" re- 
plied the captain. "Why do you want to disgrace me to 
the owners" ? asked the mate. "Were you not drunk on 
that day" ? asked the captain. "Certainly I was", replied 
the mate. "Very well then", said the captain, "We will 
let the record stand". A few days later, the captain to 
his astonishment discovered on the log book, the entry in 
large letters, "The captain is sober today" ! He flew to 



OF A LONG LIFE. 247 



the mate and demanded, "Did you write that in the log- 
book" ? "Yes", answered the mate. "But am I not al- 
ways sober" ? asked the captain. "Certainly", said the 
mate, "but were you not sober on that day" ? "Yes", 
yelled the captain. "Well then", calmly replied the mate, 
"we will let the record stand". 

I give you, Mr. Chairman, the sentiment, "The City of 
Lawrence, may its records of good government in the 
future, be, what all good citizens desire, the best of any 
city in the Commonwealth". 



Visit to the South. 

Mr. Edward Rotan and family of Waco, Texas, for 
some years prior to 1900, — had spent their summers at 
Bass Rock, Gloucester, near my summer home. They 
were pleasant and interesting neighbors. Their family 
and mine became quite intimate. 

Mr. and Mrs. Rotan gave Mr. and Mrs. Edwin B. Has- 
kell of Auburndale, Mass., and Mrs. Sherman and myself 
an urgent invitation to spend Christmas week (1900) at 
their home in Texas. 

The invitation was accepted, and the Haskells and 
Shermans went to Washington, stopping a couple of days, 
then to ^NTew Orleans (a place I had not visited since I 
was there during the war), and after remaining a few 
days, proceeded to Waco. 

The Rotan home was a large mansion house, beautifully 
situated in the city, well equipped for hospitable enter- 
tainment. We learned when we reached there, that they 
had issued invitations for a grand reception in our honor, 
for those invited "to meet Judge and Mrs. Edgar J. Sher- 



248 SOME EECOLLECTIONS 

man and Mr. and Mrs. Edwin B. Haskell of Massachu- 
setts". It was a grand entertainment, some hundreds 
attending. I refer to one incident of the reception, as 
showing that there was some of the ante helium spirit 
still remaining, especially among the women. 

As I was being introduced to one lady — somewhat ad- 
vanced in years — she said, before giving her hand, "Are 
you related to General Sherman" ? I replied, smiling 
good naturedly, "I have to confess I belong to the same 
family, but as I once told the General himself, not near 
enough to give him any special uneasiness". "Then I 
do not want to know you", replied the woman. "But", 
chimed in Mrs. Rotan, "you are not going to blame the 
Judge for what the General did". "But I do not want 
to make the acquaintance of any of the tribe", said the 
woman. Then gathered around us very many who had 
fought for the southern cause (Mr. Rotan was a soldier 
in the southern army) and laughed and jollied the 
woman, until finally she shook hands and said, "that I had 
all the characteristics of a gentleman, and of course, I 
was not to blame for the conduct of the General". 

On Christmas morning, Mr. Rotan asked Mr. Has- 
kell and myself what we most desired to see. We both 
replied a real southern plantation. Soon we were driven 
out ten or more miles to a large plantation of many hun- 
dred acres, beautifully situated. As we drove to Mason 
House, back a quarter of a mile from the highway, a fine 
looking man, over six feet tall, of sixty or more years of 
age came out to greet us. 

We were introduced and invited into the house, and 
introduced to the lady of the house and a fine looking son, 
between twenty or thirty years of age, tall like his father. 
After doing what I suppose no southern man ever failed 
to do on a like occasion, offering us some good whiskey. 



OF A LONG LIFE. 249 



we expressed a desire to walk about the ranch. That we 
will do, said the gentlemen, but not until after dinner. 
It was then just about twelve o'clock. But, said Mr. Ro- 
tan, we are to be home for dinner. But there was no use 
in refusing ; all three members of the family insisted that 
we must take seats at the table and within fifteen minutes, 
we were partaking of one of the best turkey dinners ever 
served. Everything was finely cooked in the old brick 
oven. 

After dinner we walked about, and, among other 
things, I saw two or three hundred of the best mules I 
ever saw. It was a large fine ranch and we enjoyed our 
visit much. As sometimes happens, I got into some dif- 
ficulty by too much talk. As I was walking with this tall, 
fine looking, young man, and having seen no wife, I said 
to him, "why, you ought to be married and bringing up a 
family". "Well", he said, "he supposed that might come 
in due time, that he was not very old yet", etc. When we 
all came together again in our walk, I said to the father, 
"I have been telling your son that he ought to be married, 
that it will not do to let this family run out", etc. The 
father said, "I suppose he will attend to that in due time". 

When we returned to the house, I told the mother what 
I had been saying to the son. After we bade our host 
goodbye and drove away, Mr. Rotan said to me, "Well, 
you have got yourself into a pretty mess. I tried to catch 
your eye when you were talking about the son getting 
married, but I could not, you were so much interested 
in the subject. That young man", said Mr. Rotan, 
"married a girl from 'New York, and brought her down 
here some years ago, but she left him and has gone home 
and will not come back and live with him any more. We 
do not know the reason, and that is all we know about it, 



250 SOME EECOLLECTIONS 



but the family are greatly mortified over it, so you see 
Judge you were touching on a delicate subject". 

When we reached the Rotan home and told what had 
happened, I was not particularly happy over the day's 
experience. If I am not a better man I am a wiser one. 
I have learned not to talk in a strange family about the 
marriage of the young men. 

We remained nearly a week with the Rotans, enjoying 
every moment of our visit. From there we went to Col- 
umbia, South Carolina, and visited for a couple of days, 
Colonel Haskell, a cousin of Edwin B. Haskell. Colonel 
Haskell had been in the rebel army, making a fine mili- 
tary record, and had been several times badly wounded 
and left on the field as dead, but he had finally survived 
the war. 

After the so-called carpet bag government was ousted 
from offices in the State, Colonel Haskell entered the civil 
service of the State. He was finally elected one of the 
Judges of the Supreme Court. He remained on that 
Court some years, but finally when a majority of the 
Court made a decision in favor of allowing the State to 
repudiate its debts, he resigned, saying he would no longer 
be a member of a Court which would make such a dis- 
graceful decision. 

We enjoyed our visit at the Haskells and in Columbia 
very much. 



Distinguished Men I Have Met. 

I saw President Lincoln at the White House in 1862 
and had a pleasant conversation with him. I saw him at 
another and later time at one of his receptions. 



OF A LONG LIFE. 251 



I met General Grant while he was at the head of the 
army and talked with him for twenty minutes. I also 
saw him several times while he was President. 

I saw Presidents Pierce and Buchanan before the war, 
and I have seen all since, Johnson, Hayes, Garfield, 
Arthur, Cleveland, Harrison, McKinley and Roosevelt. 

I saw General William T. Sherman many times. I 
did not meet him until after the war. I saw him while 
he was General of the Army in his office at Washington, 
in the War Department. I sent in my card, and when I 
entered his room, he said, "Well, Mr. Sherman, are we 
related" ? I answered "Yes, General, but not near enough 
to cause you any special uneasiness". I explained to him 
just what the relationship was, that we belonged to the 
same "Sherman Family", that we separated four gener- 
ations back from him. I found he was well up in the 
genealogy. 

"Well", said the General, "we Shermans, all look 
alike". After a little, another card came in. The Gen- 
eral remarked that probably the gentleman had never 
seen him, and he asked me to take his chair which I did, 
we both being in civilian dress. 

As the gentleman approached, I rose and offered him 
my hand, and as he took it he said to me, "I should know 
you General from your pictures". I replied, "I cannot 
claim to be General Sherman, I am only a Colonel. This 
(turning to the General) is General Sherman". 

"Well", said the General, "I had just remarked to 
Colonel Sherman that we Shermans all looked alike". 

At another time, later, when the General was living 
in St. Louis, while I was visiting Washington with my 
wife and two eldest daughters, learning that the General 
was there with his brother John, I called on him at his 
brother's house. 



252 SOME RECOLLECTIONS 

I said to the General, "I am here with my wife and two 
of my daughters, and they are very anxious to meet you". 
His brother insisted that I bring them to his house, but 
I thanked him and said no. The General said, "why can- 
not I call at your Hotel just after dinner tonight, say, 
half past seven". I said that would be delightful, if he 
would take the trouble to do so. 

Promptly at the appointed time, as we came into the 
parlor the General appeared. Before we could reach him 
the people crowded around to shake hands. The General 
turned his back on them, refused to shake hands, and as 
I thought treated them very rudely. We finally found a 
corner where we sat down and he made himself very 
agreeable to my wife and daughters. He partly apolo- 
gized to us, for his apparent rudeness, saying, that it 
was the only way he could meet his friends, on account 
of this everlasting weakness of our people to shake hands. 

I met General Sheridan and also Admiral Farragut. 
I had a delightful conversation with Farragut about the 
capture of New Orleans. 

I saw Edward Seventh when he was in this country in 
1859 or 18G0 as the Prince of Wales. I also met Henry 
W. Longfellow, John G. Whittier, Oliver Wendell 
Holmes and Chief Justice Shaw. 

I have entertained at my house in Lawrence or at my 
summer home at Bass Pocks, Gloucester, Charles Sum- 
ner, Henry Wilson, Frederick Douglass, George S. Bout- 
well, Judge E. Kockwood Hoar, Wendell Phillips, Dr. 
Samuel G. Howe, General Benjamin F. Butler, General 
ITathaniel P. Banks and many other noted persons. 



OF A LONG LIFE. 253 



I received the following letter from President Roose- 
velt:— 



"White House, Washington, 

February 11, 1903. 
My Dear Judge Sherman: 

Secretary Moody has shown me your letter and I can- 
not refrain from writing to thank you for it, and to say 
how much I appreciate both it and the address of Mr. 
Haskell. If you see Mr. Haskell I wish you would tell 
him how much I should like to have him come to Wash- 
ington so that I might go over with him everything that 
is being done. 

With great regard, believe me. 

Sincerely yours, 

Theodore Roosevelt. 
Hon. Edgar J. Sherman, 
Judge Superior Court, 
Boston, Mass". 



As I remember, I had sent my friend William H. 
Moody, a letter enclosing some remarks which Mr. Ed- 
win B. Haskell had made at a club dinner, complimentary 
to something that the President had said or done. I 
showed Mr. Haskell the letter, and the next time he was 
in Washington he called on the President, and was in- 
vited to dinner, and had an interesting conversation con- 
cerning public affairs, which Mr. Haskell gave me an ac- 
count of on his return. 

Later in February, 1904, while Mrs. Sherman and I 
were in Washington, we received an invitation through 
Secretary Moody to visit the President. Mr. Moody took 



254 SOME EECOLLECTIONS 

US into the Cabinet room, and as the President came out 
from luncheon presented us. He received us kindly and 
invited us into his room. I said, "Mr. President, we have 
learned that you have some thirty persons in the ante- 
room, among them the new Chinese Ambassador, waiting 
to see you, and you will excuse us. We only called to 
pay our respects". "But", said the President, "Mr. 
Moody has told me about you, and I feel acquainted and 
want to talk with you". He kept us some fifteen minutes 
with interesting conversation. 



Charles Sumnek — James G. Blaine. 

While Charles Sumner was Senator, I visited Wash- 
ington with my friend, Elbridge T. Burley, — a lawyer 
of standing and ability — who expressed a wish to meet 
Senator Sumner. I volunteered to introduce him, saying 
that I belonged to the same club. The Massachusetts Club. 
At a convenient time we called at Mr. Sumner's rooms, 
and I presented to the colored messenger a card, 

"Edgar J. Sherman and friend, Lawrence". 

The messenger, after seeing the Senator, said, "Walk 
up stairs, gentlemen, the Senator will be glad to meet 
you". Mr. Sumner received me cordially, I introduced 
my friend, and after a little pleasant conversation, the 
colored man appeared with another card. "Show him up", 
said Mr. Sumner, "these gentlemen will be glad to meet 
Mr. Wade of Ohio, old Ben Wade as he is familiarly 
called". We admitted that we should be pleased to meet 
Mr. Wade. 



OF A LONG LIFE. 255 



He soon appeared, and Mr. Sumner introduced us as 
"Messrs. Sherman and Burley of Kansas*. I looked at 
Mr. Burley in a manner that indicated that I appreciated 
the joke which was clearly upon me this time. 

Upon returning to Boston, and attending the Massa- 
chusetts Club, on the following Saturday, I related the 
incident. Dr. Samuel G. Howe seemed greatly disturbed, 
"Why", said the Doctor, "Sumner knows you perfectly 
well, he has dined with you here a great many times, and 
more than that, I have talked with him about you". I 
replied, that it was clear he did not know me from Adam ; 
that Sumner was not a politician, and knew but few men, 
that the incident did not affect me, and that I was a great 
admirer of his just the same. 

The next time I visited Washington, I called upon Mr. 
Sumner, and this time he knew me, and insisted upon my 
dining with him. Dr. Howe or some one had evidently 
been talking to him. 



As showing the difference in public men, I think of an 
incident relating to James G. Blaine. Visiting Washing- 
ton, while he was Speaker of the House, I attended one 
of his receptions, I was introduced as "Colonel Sherman 
of Lawrence". I never had met Mr. Blaine before and 
not again until (I think) four years thereafter; when 
about to be presented to him, upon a like occasion, he said, 
"I need no introduction to this gentleman, Colonel Sher- 
man of Lawrence". I could not believe he remembered me ; 
I thought some one had told him that evening who I was. 
Later in the evening, finding him at leisure, I said to him, 

•Mr. Sumner mistook the Lawrence for Lawrence, Kansas. 



256 SOME RECOLLECTIONS 

"Mr. Blaine, I am something of a Yankee, and I would 
like to know the true inwardness of your calling my name 
this evening. It cannot be that you remember everybody 
whom you have ever met". "Well", said Mr. Blaine, "I 
remember names and faces pretty well. When I met you 
four years ago, I had a son (I think he said) at Phillips 
Academy, Andover. Andover is four miles from Law- 
rence, and that gave me the clue to remember you by". 



Colonel Robeet G. Ingersoll. 

In the summer of 1880, Colonel Ingersoll was for near- 
ly three months at the Bass Rocks Hotel, near my cottage 
at Bass Rocks, Gloucester. I had met him casually before 
and had heard him lecture. During that summer I came 
to know him and the whole family intimately. The fam- 
ily consisted of Mrs. Parker, Mrs. Ingersoll's mother. 
Colonel and Mrs. Ingersoll, the two daughters, Eva and 
Maude, Mrs. Farrell (Mrs. Ingersoll's sister), her hus- 
band and their daughter Eva. 

I was at the hotel to see the family, almost every day, 
and the Colonel with or without some members of the 
family was nearly as often on my piazza. 

I never knew a happier family. Erom Mrs. Parker to 
the little Eva, they each and all seemed to enjoy life to 
the full. They were quite popular at the hotel. 

There was a large number of people from Canada, 
stopping at the hotel; they were religious people and 
commenced to have prayers in the parlor after breakfast. 
The manager of the hotel did not like to have his parlor 
thus occupied. He stated to them that it was objection- 
able to Colonel Ingersoll and family. 



OF A LONG LIFE. 257 



One of the gentlemen of the Canadian party, called 
upon the Colonel, and asked if he had any objections. He 
replied that he had not, that he spent his mornings out of 
doors, or on the piazzas, in the fields, or on the beach. 



Eemenji^ the Violinist. 

Remenji, the great violinist, was an admirer of Colonel 
Ingersoll, and he came to the hotel to visit the family. 
While there, Remenji gave a violin concert. Invitations 
were sent to the cottages inviting us all. 'No fee was 
charged and no collection taken. It was a free concert in 
honor of Colonel Ingersoll. It was a fine concert. 
Remenji was one of the best in the line, and all lovers of 
music enjoyed it very much. But as all there were not 
lovers of music, a few such kept up a continual conversa- 
tion in whispers or in low voices, to the great disturbance 
of the concert. Finally, right in the midst of one of the 
sweetest strains of music, Remenji exploded. He stopped 
short. "Here I am giving a free concert and pouring into 
it my best effort, my very life, and there are a lot of old 
women cackling like so many hens". The Colonel came 
forward, and with great tact, smoothed the troubled 
waters; half apologizing for the old women, and also for 
his friend's temper, under provocation. The audience 
sympathized with the violinist. The concert went on, 
after the excitement was over, and there was no more 
cackling from any one, and it did seem as though the 
artist poured his whole soul into the music. 



258 SOME RECOLLECTIONS 



Ingeesoll's Wit. 

The last of the season the Colonel delivered a few lec- 
tures in different cities in Essex County, and made one 
speech at the City Hall, Gloucester, in behalf of General 
Garfield, the Republican candidate for President. 

From that time until the Colonel's death, I visited him 
in Washington and ISTew York, whenever I had occasion to 
go to those cities. He seldom visited Boston without call- 
ing upon me or inviting me to call on him. 

I insert a copy of a letter which he sent me after one of 
my visits to Washington, published at the request of 
friends, which is self-explanatory. It shows what Inger- 
soll could do as a humorist. I also insert a copy of a letter 
sent me May 17, 1888, concerning the Goodwin trial, 
which shows his kindly feelings toward me by over-stating 
and over-praising my argument. 



"Bass Rocks, Gloucester, 

August 9, 1898. 
My Dear Friend: 

During the summer of 1880, Colonel Robert G. 
Ingersoll and his family were at the Bass Rocks Hotel, 
near my cottage. I saw them often and formed a strong 
attachment for the whole family. 

In the Spring of 1883, I visited them where they were 
then living, in Washington. 

The Colonel took but little exercise and seemed to be 
growing stout. I recommended exercise, and especially 
walking. I must have talked "walk" a good deal. 

Soon after reaching home I received the following let- 
ter. It has been read from time to time to friends, who 



OF A LONG LIFE. 259 



have asked for a copy. I enclose it to those who have 
made the request and to others who I think will enjoy it. 

Sincerely yours. 

Edgab J. Shekman". 



"Washington, D. C, April 26, 1883. 
Hon. E. J. Shekman, 

Lawrence, Mass. 
My Dear Colonel: 

After you went away, the folks commenced. No one 
man ever received an equal amount of advice in an equal 
time. 

'You must walk. Colonel Sherman says that you are 
liable to fall dead for want of exercise. Do you hearf 
You must walk' I 

'Yes', said grandmother, 'the apoplexy is lurking in 
your blood'. 

'You are liable to be paralyzed', said my wife. 

'Or to die in your sleep', said Mrs. Farrell. 

'Or after you wake up', chimed in the baby. 

'You must walk', said Eva. 

'You ought to run', added Maude. 

'And never sit down again as long as you live', shouted 
Clint. 

So I started for Georgetown, and walked five miles be- 
fore breakfast. Then I footed it to the Court, and walked 
home. After supper, I took a stroll in the country, reach- 
ing home a little before midnight. The next morning my 
calves were swollen so that they looked like yearlings. 
After being rubbed down with whisky and red pepper, and 
oiling my principal joints, I started out again about day- 
light, and walked to Bladensburgh — distant about eleven 
miles. On my return, about half-way home, I was taken 
with cramps and lock-jaw. I managed by signs to attract 
the attention of some people on their way to market, and 



260 SOME RECOLLECTIONS 



was kindly taken home in a cart laden with garlic, kale, 
and sassafras. 

I was carried in very tenderly by the entire family, all 
of whom insisted that moke walking was what I needed ! 

'He stopped and cooled off too suddenly', said Clint. 

'Lying down in the road will give anybody the cramps'^ 
said Maude. 

'I guess Colonel Sherman knows what he is talking 
about', said Mrs. Farrell. 

'Limber him up and start him again', yelled Clint. 

So I was put to bed — covered with mustard — my legs 
straightened out by putting weights on my knees — and my 
mouth filled with dried apples so as to swell my teeth 
apart. 

As soon as I was able to speak, I sent for Baker that I 
might dictate a letter to you for further instructions. 

Of course it is necessary for you to know my general 
condition : 

1. Both my feet are covered with blisters. 

2. The chords in my legs are as tight as the strings of 
a bass viol. 

3. Great pain in the small of my back, 

4. Sudden flushes of heat running up and down the 
spine. 

5. Knees badly swollen. 

6. Mind wandering. 

7. Pulse about 120. 

8. Temperature of the body 115 degrees. 

9. Fur enough on my tongue to make a seal skin 
sacque. 

I think I have walked enough. The rest say not. Tele- 
graph your opinion. I am held up in bed to sign this 
letter. 

I have looked through WALK-er's Dictionary without 
finding anything on the subject. I have also read 'Plato 
on the Sole\ 

Yours till death, 

E. G. Ingeesoll". 



OF A LONG LIFE. 261 



Ingersoll was a great lover of nature, and, independent 
in his views of religion, which he seldom intruded upon 
others (uninvited ?) he was a great and lovable character. 

While the Star Route trials were going on in Washing- 
ton I called upon Colonel Ingersoll, who was of Counsel. 
He introduced me to the presiding Judge, a strong be- 
liever in religion. At the intermission the Judge invited 
me into his lobby. As we talked about Colonel Ingersoll, 
the Judge said, "When I learned that he was to take part 
in this trial, I was unhappy, I regarded him as a blatant 
infidel. After three weeks of the trial of the case, I have 
become a great admirer of his. He can bring more sun- 
shine into a court room than any man I ever saw". 

I would enlarge the statement by saying, that he has 
brought more sunshine into the world than any man I 
ever saw. 

I was naturally gratified to receive the following note: 



"400 Fifth Avenue, 

N'ew York, May 17, 1888. 
My Dear Judge: — 

I received your book (the Goodwin trial) and read your 
speech and Butler's. You got away with the old man in 
splendid style on the definition of insanity. 

It is not often that I really get interested in a case that 
I am not in, but I did in this, and particularly in your 
argument. It is clear, forcible, and above all natural. 
You started on a gait that you held to the end, and every 
word was well placed. 

After reading that speech I concluded that you ought 
never to have gone on the bench. Your place is at the 
l)ar. 



262 SOME KECOLI.ECTIONS 

Well, thanking you again for the book, and wishing the 
best of luck that any Judge ever had, I remain, 

Yours always, 

R. G. Ingeesoll". 



My Religion. 

"The Sherman Family" seem to have been composed of 
religious believers and unbelievers. In the same family 
were pious and devout men, brothers who were of liberal 
opinions and doubters. My grandfather was a Calvinist 
Baptist, a very religious and devout man. I do not re- 
member ever to have seen him laugh; his was a serious 
life, without jokes or frivolity. He acted as though the 
All Seeing Eye was upon him all the time. His children 
were divided, somewhat evenly, one half Christians and 
the other half infidels and atheists. 

In early life I tried to be a believer, and afterwards, 
I became somewhat of a doubter. I thought the matter 
could be settled by evidence like other matters, and there- 
upon I began to read both sides ; I read a good deal care- 
fully and conscientiously to find the truth. I found, 
however, that it was not a matter to be settled logically by 
reason, but a pure matter of faith. Since then I have 
not tried to discuss the matter, or urge my views of belief 
or unbelief upon others. 

I have read lately with interest an article in the North 
American Review of October, 1907, by the late Ex-Gov- 
ernor, D. H. Chamberlain, "Some Conclusions of a Free 
Thinker". 



OF A LONG LIFE. 263 



General William T. Sherman had a son who went over 
to the Romish Church and is now a priest. My oldest son, 
after becoming an Episcopal clergyman and a Chaplain 
in the U. S. Navy, resigned his position and joined the 
Roman Catholic Church. 

Whatever my belief, I have experienced a happy life,, 
have been reasonably prosperous, and with a happy dis- 
position, have enjoyed my life from childhood to old age. 

I have heard men say, that if all there is of life is upon 
this earth, then it is a delusion and not worth the living. 
I have a very different feeling, I have enjoyed life to the 
full, and have no anxiety concerning the future. 



Rum. — Intoxicating Liquors. 

The Sherman family, so far as I can learn, have been 
temperate in the use of intoxicating liquors. My father 
was a total abstainer. I never drank liquor of any kind 
until I entered the army. In the Department of the Gulf, 
whiskey and quinine were served by the government as 
a preventive to malarial fever. Since then I have not 
been a total abstainer. I have used the lighter wines oc- 
casionally, — always temperately. 

On the other hand, my intimate friends, boys and men, 
have generally used intoxicating liquors to excess. Many 
of them have been cut off from spheres of usefulness and 
gone down to premature graves. I have been a missionary 
to those friends from boyhood to old age, and I believe I 
have saved some of them; but the way is strewn from 
one end to the other with the premature dead. Many of 
them made strenuous and heroic efforts to throw off the 



264 SOME KECOLLECTIONS 

habit, but it was so firmly established they did not suc- 
ceed. 

As I look back upon this terrible havoc among the 
brightest of boys and men along the pathway of life, it 
seems to me if it could be seen and appreciated by the 
rising generation, it would be the best temperance lesson 
which could be given. 



Second Maeriage. 

On the evening of February 15, 1904, I was married 
to Miss Virginia Bryant, my sister's adopted daughter. 

Previous to our marriage my sister and Miss Bryant 
had built a house at Jamaica Plain. Since the marriage 
we have resided there, the family consisting of my sister, 
my wife, her adopted son, Malcolm Clarke and myself. 

The Boston Herald of February 16, 1904, contained 
the following notice of the marriage: — 



"The marriage of Judge Edgar J. Sherman of the 
Massachusetts Superior Court, and formerly Attorney 
General of the Commonwealth, and Miss Virginia Bryant 
of this city, took place last evening at the residence of 
Mrs. Malvina E. Backus, a widowed sister of the Judge, 
on Hampstead Road, Jamaica Plain. The ceremony was 
performed by the Rev. Charles F. Dole of the First Con- 
gregational Society. Judge Sherman's eminence at the 
bar long since gave him prominence professionally, and, 
with his unusual 'capacity for friendship', has made him 
an ever welcome companion and prominent socially, not 
only at his old home in Lawrence, but in all circles he 
entered. 

The bride comes of old J^ew England Bryant stock of 



OF A LONG LIFE. 265 



which William Cullen Bryant is it's most conspicuous 
member, and is a lady of culture and refinement. Her 
early home was in Andover, and from that pious hilltop 
her father, E. K. Bryant, went out for service in the war 
of the rebellion. He had talent as an artist and inventor ; • 
in fact he was among the first to anticipate the automobile 
of today. He was wounded at the battle of Spottsylvania 
and died in Washington a few weeks later. 

In 1880 Miss Bryant's mother died and the following 
year Mrs. Backus lost her only child, a daughter, between 
whom and Miss Bryant there had always seemed a most 
striking resemblance. Since that time Mrs. Backus and 
Miss Bryant have made their home together. Subsequent- 
ly Mrs. Backus legally adopted Miss Bryant as her 
daughter. 

For three years Miss Bryant acted as dramatic editor 
of one of the Boston papers. She has been for many 
years a member of Dorchester Women's Book Review 
Club, also a member of the Appalachian Club". 



Judicial Dignity. 

It is supposed by the outsiders that "the serious looking 
judges" do not have or enjoy jokes or a little bit of fun, 
now and then. In the lobby it is quite otherwise. They 
play jokes on each other. 

One day Judge Fox came into the lobby with $25.00 in 
bills in his vest pocket, the ends of which could be seen. 
Some one remarked, "Look out Judge or some pickpocket 
will steal your money". "I wonder", said Judge Fox, 
"how those pickpockets do their work without being de- 
tected". "Oh, that is easy enough", said Judge Sherman, 
who was standing near Judge Fox, "they walk up to you 
this way, and take your money and walk away". At the 
same time Judge Sherman had taken Judge Fox's money. 



266 SOME RECOLLECTIONS 

Soon after some one asked Judge Fox for a loan of $5.00. 
Putting his hand into his pocket, Judge Fox found that 
his money was missing. "Judge Sherman, have you my 
money" ? asked Judge Fox. "!N'o", replied Judge Sher- 
man, which was true, as still imitating the pickpocket, 
he had passed it to Judge Lawton. 

While we were in the old Court House, Judge Pitman 
came into the lobby one rainy Saturday morning with a 
new silk hat. A little before one o'clock I went out, leav- 
ing Judges Pitman and Blodgett there. Some time after, 
the Court messenger came to the hotel, where I was din- 
ing, and asked if I had Pitman's hat. I answered that I 
had not. The next Saturday several judges were in the 
lobby, including Judges Pitman, Blodgett and myself. 
Judge Pitman stated, that he should think matters were 
coming to a serious pass, if new silk hats were to be stolen 
from the judge's lobby. He then exhibited an old hat, 
the same size as his, in nlace of the one taken. All 
agreed it was serious. I remarked to Judge Pitman, "I 
am something of a detective, I can tell who has your hat" ! 
"Well, I wish you would do so", said Judge Pitman. 
"^ 'Judge Blodgett has your hat", said I. 

Judge Blodgett. "What do you mean by saying that 
I have his hat" ? 

Judge Sherman. "I have nothing to say except that it 
is a fact". 

Judge Blodgett at once left the Court House, without 
saying another word. In about an hour, he returned with 
Judge Pitman's hat. He then explained. "I had just 
bought a Jackson hat of exactly the same make and size 
as Judge Pitman's, and I took his hat by mistake". Now 
they both said, "Judge Sherman we would like to know 
how you knew these facts" ? 



OF A LONG LIFE. 267 



"That is easy to explain", said I, "I saw Pitman come 
in with a new hat on a rainy morning. When I went out 
you both were here and alone. I had not taken it, so I 
thought Blodgett must have. More than that, I felt sure 
a careful, prudent man like Blodgett, would not have worn 
his new hat, when he had an old one, on such a rainy 
morning". Then I added laughing, "But I noticed when 
Judge Blodgett left here to go to his home to see if he had 
Pitman's hat, he still hung on to the new hat, rather than 
take the old one which he had worn for years". All the 
judges laughed, in which Blodgett joined. 

Judge Thompson, while at the bar, tried a large num- 
ber of criminal cases while I was District Attorney. 

It was a long criminal term at Lawrence, near its close, 
and we were trying one Bernard P. McBride of Lynn for 
keeping a liquor nuisance. The State Constable had 
raided McBride's small grocery store, finding about a pint 
and a half of whisky, concealed between the partitions. 

In this case Mr. Thompson had not had his client be- 
side him, nor had he afforded any evidence. When Mr. 
Thompson commenced his argument, he called upon 
McBride to stand up. He did so. McBride had a re- 
markably red, rum-looking face. "I^ow, Mr. Foreman 
and gentlemen look at Bernard, look at that face. How 
long do you think it has taken to color it? How much 
liquor do you think it has taken to do the business ? It 
appears that this was on Saturday, and that they seized 
a pint and a half of whisky. Do you think if Bernard 
had only a pint and a half, and he could get no more until 
Monday, that he would sell it" ? 

He further said, "Gentlemen, there are two kinds of 
verdicts, which you can render, 'guilty', which you seem 
well acquainted with, but there is another kind, 'not 



268 SOME EECOLLECTIONS 



guilty', which verdict I hope my client Bernard may 
hear, and return home with a smiling countenance". 

Henry Martin was a Gloucester liquor seller. Thomp- 
son used to tell me, when Martin went over to the great 
majority, he would sell liquor there, if there was any 
chance. 

On day, the Constables seized all of Martin's liquor, 
cleared out his stock entirely. Martin, fearing he would 
lose some trade, and that other dealers would get ahead 
of him, at once on the same day, got in a new stock, and 
sent the town crier out to cry his wares. (Martin was 
being tried for keeping a liquor nuisance on that day.) 

Hearing of this, I thought it was too good evidence to 
be lost, so I summoned and put on the stand, the crier 
as the first witness. "Were you employed by the defend- 
ant, Henry Martin, to act as crier? If so, what did he 
say to you" ? 

"He told me to go to the corner of the streets, and cry 
as follows, after ringing my bell:— 'Henry Martin has 
constantly on hand at his place of business, 38 Duncan 
St., all kinds of liquors, rum, gin, brandy, whisky, etc., 
and is sole agent for the Bunker Hill Brewey Co.' " This 
was conclusive evidence against Martin and he was con- 
victed. 

Thompson, Henry Martin and everybody in the court 
room laughed, and none seemed to enjoy the joke more 
than Martin and Mr. Thompson. 

While at my summer home in Gloucester, and hav- 
ing an old school-mate visiting me, I saw Thompson 
driving over to make a call. I went out to meet him and 
told him, that my friend was a nice clergyman, but a sort 
of a religious crank, that I did not think he would say 



OF A LONG LIFE. 269 



anything to him (Thompson), if so, he would understand 
the situation. 

As we entered the house, I introduced the two gentle- 
men. Mr. Thompson at once commenced to talk, and I 
never heard him talk faster or more interestingly for 
nearly an hour, then a shower was threatening. Thomp- 
son excused himself and left suddenly. 

After he had gone, my friend the clergyman said, "Do 
all of your judges talk as much as this one" ? When I 
subsequently told Judge Thompson of this remark, he 
laughed heartily and said, "I intended to hold the floor". 



Asking Leave of Couet to Wake up a Jueoe. 

Charles P. Thompson at one time defended most of 
the persons charged with the violation of the liquor law 
in Essex County. 

Judge Pitman, a strong prohibitionist, was holding the 
Superior Court at ISTewburyport, and Mr. Thompson was 
acting upon the theory that having, say, sixty cases to 
defend, if he tried only three or four cases a day, and the 
Court had only two weeks before it would be required to 
adjourn, quite a number of the cases would have to go 
over to the next term, and perhaps, in the meantime, some 
of the witnesses would disappear and those cases could 
not be tried. So Mr. Thompson took all the time he 
could in cross-examination of the government witnesses 
and then argued every case an hour, — the longest time 
allowed under the rule of Court. There really was no 
defence to these cases, so Mr. Thompson had to "talk 
against time", quoting from the Bible, Watts' Hymns, 
Shakespeare, etc., etc. 



270 SOME RECOLLECTIONS 

Judge Pitman was very unhappy over this condition 
of affairs; thought this conduct on the part of Mr. 
Thompson reprehensible and unprofessional, tending to 
bring the Courts of Justice into contempt, and whenever 
he saw an opportunity he would reprimand Mr. Thomp- 
son. 

One day, while Mr. Thompson was arguing a case, hav- 
ing his voice pitched on the high key when the Judge in- 
terrupted, saying "Mr. Thompson, there is no occasion for 
your hallooing loud enough to take the roof off the court 
house ; the jurors are not deaf" ! 

Mr. Thompson, good-naturedly, said, "Perhaps, your 
Honor, I was speaking rather loudly. I will lower my 
voice". 

It being a warm day, one of the jurors closed his eyes, 
when Mr. Thompson, with a dramatic gesture, said, 
"Your Honor, I notice that one of the jurors is asleep. I 
trust your Honor will allow me to speak loud enough to 
wake him up" ! 

A laugh went around the court room, the sheriff cried 
"Order in Court", the juror opened his eyes, and Mr. 
Thompson went on with his argument. 

At the time of completing our new Court House at 
Lawrence, we had a dedicatory banquet, at which the 
three judges of the Superior Court, Sherman, Bell, and 
DeCourcy, were present. 

Ex-Congressman William S. Ejiox made a speech; one 
paragraph will bear repeating: 

"We have a new Court House, which has cost the coun- 
ty so much (naming the figure), and it is worth all it has 
cost us; we have a pretty good library, which has cost us 
so much, and it is worth all it has cost us; and we have 



OF A LONG LIFE. 271 



three judges of the Superior Court — they cost us nothing, 
and they are worth all they cost us". 

A story has been in circulation for some time concern- 
ing Judge Bishop and myself. Perhaps it is better to tell 
the whole story. 

At one of the meetings of the Justices, which I have 
been in the habit of calling our Quarterly Conference, 
we were considering the question of employing women 
stenographers. 

Some of the justices Avere strongly opposed to their 
employment ; they said it might cause scandal, etc. ; 
others favored the employment of a reasonable number. 
The arguments on the one side and the other became quite 
earnest. Judge Bishop argued against and I for their 
employment. I argued that if they passed as good or bet- 
ter examinations than the men they should have the 
places, that we had already tried the experiment (we then 
had a few women stenographers) that it had proved a suc- 
cess, and that we had heard of no scandal thus far. Judge 
Bishop then turned to me, as if to settle the whole matter 
by a question, and said, " Judge Sherman, if I was hold- 
ing the equity session, and after the Court adjourned 
I wanted to consult the stenographer and she was a 
female, would you think it safe and proper, after the 
other judge had gone, to send for her and meet her here 
alone" ? 

I replied, "As the officers are always in the room across 
the hall way, I do think it would be safe for you, as if 
anything happened, you could hallo". The serious and 
sedate judges smiled, and Judge Bishop did not seem of- 
fended at my answer. 

It was decided to give the women a fair chance in the 
competitive examinations. 



CHAPTER XIV. 



THE JUBILEE BANQUET, MARCH I7th, 1908. 



The first suggestion of the banquet to Judge Sherman 
came from Henry F. Hurlburt and Boyd B. Jones in the 
following letter: 

Boston, Dec. 14, 1907. 
William H. Niles^ Esq.^ Bynn, Mass. 
Dear Mr. Niles: — 

In a very short time I presume you will be making ar- 
rangements for the Essex Bar dinner. It occurred to Mr. 
Jones and myself to make a suggestion to you which we 
think would be met with favor by all the members of the 
bar, and in addition would make the evening an eventful 
one. 

Judge Sherman has been at the bar and upon the bench 
fifty years the early part of next year. The Middlesex 
Bar Association has heretofore honored the members of 
the bench who were taken from their bar, having given a 
dinner to Judge Hammond, and one this year in honor of 
Judge Mclntyre of the Probate Court. It is a very 
appropriate thing to do, and as Judge Sherman started 
in Essex County and occupied a position of District 
Attorney there for many years, having been Attorney Gen- 
eral and now the senior Justice of the Superior Court, it 



OF A LONG LIFE. 



273 



seems to us as though the Bar Association would be doing 
itself an honor by having the next Bar dinner given in 
honor of Mr. Justice Sherman. If the dinner is given 
in his honor, you will have no difficulty in having a large 
number of the Judges present to do honor to the guests. 
We trust that this suggestion will appeal to you, and 
we shall be pleased to hear from you. 

Very sincerely yours, 

Henky F. Huelbukt. 



JUDGE SHERMAN. 



The complimentary banquet to be given by the Essex 
Bar Association to Judge Edgar J. Sherman of the 
Superior Court this evening, in recognition of the fiftieth 
anniversary of his admission to the bar, will bring to- 
gether a fine array of distinguished judges and lawyers 
who will delight to pay appropriate tribute to the guest of 
honor. The Massachusetts bench has been adorned by 
many eminent jurists, famous in many ways, but the 
career of few of them have been characterized by loftier 
ideals, or by sounder common sense, in the administration 
of justice than Judge Sherman has been wont to display 
during his long and devoted judicial service. 

Editorial in the Boston Herald, March 17, 1908. 



274 SOME EECOLLECTIONS 



OEGANIZATION 

OF THE 

ESSEX BAK ASSOCIATION. 



President, 
William Heney Niles. 

Secretary, 
Aldhn Perlet White. 

Treasurer, 
Fkank Vernon Weight. 

Executive Committee, 

Charles Augustus Say ward, Nathaniel Nelson Jones, 
Harry Eobinson Dow, Joseph Francis Quinn, 

James Henry Sisk, Charles Albert Eussell, 

Francis H. Pearl. 

Committee on Banquet, 
Edward Barton George. 

Chorister, 
Edward Mark Sullivan. 



OF A LONG LIFE. 275 



GUESTS. 



Hon. Edgar J. Sherman, 
Senior Justice of the Superior Court; 

Hon. Marcus P. Knowlton, Chief Justice, 

AND 

Hon. James M. Morton, Hon, Henry K, Braley, 

Hon, John W. Hammond, Hon. Henry N. Sheldon, 
Hon. William C. Loring, Hon. Arthur P. Eugg, 

Associate Justices of the Supreme Judicial Court; 

Hon. William L, Putnam, 
Judge of the United States Circuit Court of Appeals; 

Hon. Clarence Hale, 
Judge of the United States District Court of Maine; 

Hon. Frederick Dodge, 
Judge of the United States District Court of Massachusetts; 

Hon. John Adams Aiken, Chief Justice, 

AND 

Hon. Egbert E. Bishop, Hon. Edward P. Pierce, 
Hon. Franklin Gr. Fessen- Hon. Jabez Fox, 

DEN, Hon. Charles A. DeCourcy, 

Hon. James B. Eichardson, Hon. Eobert 0. Harris, 
Hon. Francis A. Gaskill, Hon. Lloyd E. White, 
Hon. John H, Hardy, Hon. John C. Crosby, 

Hon. William B. Stevens, Hon. William F. Dana, 
Hon. Charles U. Bell, Hon. John F. Brown, 

Hon. Frederick Lawton, Hon. George A. Sanderson, 
Hon. Eobert F. Eaymond, 
Associate Justices of the Superior Court; 



276 some recollections 

Hon. Dana Malone, 
Attorney General; 

Hon. John D. Long, 
Ex-Governor ; 

Hon. John L. Bates, 
Ex-Governor ; 

Hon. Albert E. Pillsbury, 
Ex- Attorney General; 

Hon. Melvin 0. Adams, 
Ex-United States District Attorney; 

Hon. Boyd B. Jones, 
Ex-United States District Attorney. 



OF A LONG LITE. 277, 



ESSEX BAR DINNER 



(There were some three hundred members of the bar 
in attendance at the banquet.) 

President Niles, on arising to call the company to 
order, was greeted with prolonged applause and cheering. 
He spoke as follows: 

Gentlemen of the Essex Bar Association: — 

For the sixth time it is my privilege and great pleasure 
to greet you at the annual banquet to our Association, 
and in your behalf to extend to our distinguished guests 
the most sincere and hearty welcome of the Association, 
and to assure them, and each one of them, of our heartfelt 
appreciation of the honor they confer upon us by their 
presence. 

In referring to the honor they do us, I do not forget 
that they come not so much to honor us as to honor our 
chief guest, and to join us in the celebration of the fiftieth 
anniversary of his admission to the bar. 

Judge Sherman has been a valued member of our 
association for many years, and throughout all this time 
has been so actively and so earnestly interested in the 
work of the association that while we know that our 
guests come principally to honor him, they also by honor- 
ing him highly honor us. 



278 SOME EECOLI.ECTIONS 

My acquaintance with Judge Sherman reaches back 
nearly forty years, and during that time I have personally 
been greatly indebted to him for advice and assistance in 
my profession. I never knew a member of the bar who 
exercised a more friendly, watchful care of his brethren, 
or who was more free, generous, or painstaking in his 
efforts to help them on and to aid them in finding the 
right way. It would therefore give me much pleasure to 
speak of him as District Attorney, as Register in Bank- 
ruptcy, as Attorney General, and as Judge of the Superior 
Court, in all of which offices I have known him well, and 
have observed the honor which he has reflected upon every 
one of them, but another member of our bar will speak 
in this behalf for our Association, and I leave that pleas- 
ure to him, without trenching upon the part which he will 
so fitly and gracefully perform. 

We have many eminent guests with us and I know how 
much it would gratify you, if the time permitted, to hear 
from every one of them, but our time is so limited that 
we shall not be able to afford ourselves that pleasure. We 
hope that at some time not far distant we may have with 
us again the guests who do not speak tonight and that we 
may then be permitted to listen to them. 

As every moment I detain you diminishes to that ex- 
tent the time which we have allotted to those who are to 
address you, and whom I know you are so anxious to hear, 
you will commend me if I at once give way to others, and 
you would not be willing to pardon me if I failed to do so. 

Gentlemen, up to the last moment I have been watch- 
ing that door expecting to see our brother Moody enter it. 
(Applause.) I have reason to suppose that he has left 
!N"ew York and is on his way here. A telegram has been 
received here addressed to him, but he has not arrived. 
A letter was received by me, however, from him, saying 



OF A LONG LIFE. 279 



that he thought it impossible for him to reach here and I 
will ask our Secretary to read that letter. Several other 
letters have been received, but of those that have been re- 
ceived I will ask the Secretary to read those that I have 
handed to him. 



Secketaet White: Mr. President, these are the words 
of Mr. Justice William H. Moody of the United States 
Supreme Court: 



Supreme Cotjet of the United States. 
Washington, D. C, March 15, 1908. 
My Dear Mr. Niles: 

"I had hoped up to yesterday afternoon that I might 
be able to be with you on Tuesday night, but it cannot be. 
I think that you and my brethren of the Bar will need 
no other assurance that I cannot come than lies in the fact 
that I do not come, so I will waste no time on that. 

It distresses me very much to be deprived in a share 
of this manifestation of respect and affection for our 
brother and friend Sherman, but I am comforted by the 
thought that my absence at the command of duty will to 
him, who burning with fever, in violation of the orders 
of the surgeon, led the companies who carried the colors 
in the charge at Port Hudson, need no explanation or 
excuse. ^(Applause.) 

I came to know well Colonel Sherman, as we then 
called him, soon after my admission to the Bar, and 
formed a frienship with him which I hope and believe 
has constantly strengthened to this day. He was then 
District Attorney, with an unerring instinct for the jugu- 



280 SOME RECOLLECTIONS 

lar vein of the proved offender (laughter), yet vigilant to 
protect innocence and with a humane allowance for the 
f railities of mankind. 

On the civil side of the court he met on equal footing, 
those leaders of the Bar who have long since ended 
their strivings. As a sagacious adviser and as an effective 
prosecutor of crime, he equalled the best of our attorneys 
general. Mr. Justice Holmes, who here sits next me 
on the Bench, never tires of describing the argument in 
Commonwealth v. Nicholson, which first arrested and then 
turned the tide of sympathy which was running in favor 
of a deliberate murder, and compelled a just verdict of 
condemnation. 

I well remember predicting when he was appointed 
to the Bench that he would exceed the expectations of his 
best friends. I now triumphantly call upon our brethren 
to bear witness to the truth of my prophecy. As a Judge 
he has not been content to preside over the disputes of 
counsel, to deliver a charge free from academic error and 
leave the jury to bear their burden unaided. (Laughter 
and applause, in the midst of which the Secretary paused 
for a moment in his reading). 

Judge Sherman: Go on. (Laughter.) 

The Seceetaky: (Reading). 

"He has felt responsibility for the justice of the verdicts 
in his court (renewed laughter), and within the limits 
prescribed by the law (applause), but up to them (great 
laughter), he has aided the juries in ascertaining and de- 
claring the truth. He has realized that trial by jury would 
be a failure without the help of a strong and fearless pre- 
siding justice. (Applause). 

We are not likely to overestimate the value to the com- 
munity of a life like that of Judge Sherman. Let us do 



OF A LONG LIFE. 281 



him all honor, wish him life and health and happiness, 
and assure him that he has troops of friends. Tell him 
that I am among the chief of those friends and I offer to 
him and to my dear brethren of the Essex Bar my loving 
remembrances. 

Sincerely, 

William Heney Moody." 



(Great applause.) 



Me. White. I read the letter of Hon. Herbert Parker, 
Ex- Attorney-General. 



Boston, Massachusetts. 

March 17, 1908. 

William H. Niles, Esq., 

President Essex Bar Association, Lynn, Mass. 

My dear Mr. President: — 

The united Bar of Massachusetts joins in a common 
sentiment of affectionate respect for the honored guest of 
the Essex Bar. Present and absent, we are all together 
in this. No Judge has ever been more loved by lawyer 
and laymen alike, for he has known the hearts of the 
people, their strength and their weakness, sustaining the 
one, and uplifting the other. He has been compassionate 
with the unfortunate and charitable in his judgment of 
those who have sinned. He has saved a multitude from 
despair and set them again in paths of virtue. He has 
humbled and overwhelmed arrogant crime by austere and 
just punishment. !N'o judge of our time has exhibited 



282 SOME RECOLLECTIONS 

more instant appreciation of the true merit of the issue 
before him. He has been always a nisi-prius judge of 
surpassing sagacity. 

He has made the law a system of justice and has ap- 
plied it to the exact maintenance of human rights. Kind- 
liness, sympathy, generosity and courage have marked his 
every relation in life. Though he has been deservedly dis- 
tinguished, and has held, rightfully, positions of public 
honor and authority, and has earned their rewards through 
high achievement, yet I venture to believe to-night his 
happiness is in the affectionate regard and love of all who 
know him. We envy the Essex Bar in their claim to his 
companionship, but we claim equal right with them in his 
public service and in the affection to which he has given 
us admittance. 

I am, with heartiest sympathy in your celebration, 

Faithfully and obediently yours, 

Hekbeet Parker. 



President Niles: Those of you who were with us at 
our banquet last year and who spent a social hour with 
the Chief Justice of our Supreme Judicial Court and 
listened, as I am sure we all did, with interest and delight 
to the admirable address he then delivered, realize how 
fortunate we are in having him with us again. He needs 
no introduction to this audience, every man of whom 
knows him and regards him not only with most profound 
respect but with sincere affection. I now present to you 
Chief Justice Marcus P. KJnowlton. 



OF A LONG LIFE. 283 



Remarks of Hon. Mabotjs P. Knowltoit, 

Chief Justice of the Massachusetts Supreme Judicial 

Court 

Mr, President, and Gentlemen of the Essex Bar: 

One year ago I was invited to join you in expressing 
appreciation of a favorite son of Essex County, a Justice 
of the Supreme Court of the United States. Tonight I 
come again on your invitation to a banquet given in honor 
of another favorite son of Essex County, the Senior As- 
sociate Justice of the Superior Court of Massachusetts. 
I feel personal pride and pleasure in these annual meet- 
ings, for these favorite sons are my brothers, children of 
the same foster mother that received my ancestors in old 
Ipswich more than two hundred and seventy years ago. 
(Applause.) 

My first definite knowledge of your honored guest was 
imparted long ago by one of the ablest judges of the Su- 
perior Court, who told me that Mr. Sherman was the best 
District Attorney in the Commonwealth. (Applause.) 
Kot long afterward, at my first term of court in Salem, 
he tried cases before me, the most memorable of which 
was an important suit for libel brought against a Roman 
Catholic priest. That exceedingly astute and able lawyer, 
Stephen B. Ives, was the leading counsel for the other 
party, and I quickly discovered that these gentlemen had 
encountered each other previously as belligerents. Almost 
from the beginning their zeal and earnestness and rivalry 
were such as to call for regulation by the Court. (Laugh- 
ter.) I am glad to say that after one or two gentle re- 
minders from the presiding Judge, and another reminder 
that was not altogether gentle, the remainder of the rather 
long trial was conducted most decorously by both of them. 



284 SOME EECOLLECTIONS 

Soon after this our friend was elected to the office of 
Attorney General, and in that important place he was the 
official adviser of Governor Benjamin F. Butler and of 
two of his successors, Governor Robinson and Governor 
Ames. Of his experience in furnishing law for General 
Butler I cannot speak from knowledge. (Laughter and 
applause.) We fairly may assume that it was sometimes 
enlivening. 

In September, 1887, he was appointed a Justice of the 
Superior Court. He took the place made vacant by my 
promotion, and in this succession I have always felt great 
interest and satisfaction. Different causes have combined 
to give Judge Sherman special fitness for the performance 
of judicial duties. By natural endowment he has a strong 
sense of justice and a keen perception of men's motives. 
He is quick to perceive the underlying purpose of an actor, 
even when the act itself seems colorless. In his boyhood 
and youth on the hills of Vermont he breathed an exhila- 
rating atmosphere, and from the scenes of beauty that 
distinguish his native state he brought to Massachusetts 
a vigorous and breezy personality. His experience was 
broadened by service as an officer in the Civil War, so 
that when he was settled in the practice of the law his 
equipment was not limited to lessons taught in schools, but 
included a variety of weapons forged in armories remote 
from one another. 

As the Senior of the twenty-five Justices who sit on the 
Superior Bench, he has exhibited qualities that have great- 
ly strengthened the confidence of the people in our great 
trial court. While by no means commonplace, his judicial 
work has been fairly representative of that of his asso- 
ciates. His chief aim has been to regulate the machinery 
of the Court in such a way as to do justice in individual 
cases. In interpreting the law he has found his strength 



OF A LONG LIFE. 285 



where enduring strength lies — in the discovery and appli- 
cation of principles, rather than in the search for cases 
showing similar facts. (Applause). When compelled 
to make a legal adjudication in a new field he has asked 
himself what the law ought to be upon the undecided 
question, and in that way has commonly reached correct 
conclusions. (Applause). 

We may well congratulate the lawyers and the people of 
the Commonwealth upon the men and the methods so hon- 
orably represented by your distinguished guest. When we 
consider him and others like him, and reflect upon the 
administration of justice in those of our courts that bring 
judges face to face with suitors in the trial of cases, one 
would almost think that the Governors of the Common- 
wealth had taken counsel of Lord Bacon, and had followed 
his suggestions implicitly. Hear what he said to George 
Villiers, afterwards Duke of Buckingham, the favorite 
minister of James I, in advising him as to the duties of 
the sovereign in regard to law and justice. These are his 
words. 

"Let no arbitrary power be intruded. The people of 
this kingdom love the laws thereof, and nothing will oblige 
them more than a confidence of the free enjoying of them. 
What the nobles on an occasion once said in parliament, 
Nolumus leges Angliae mutare, is imprinted in the hearts 
of all the people. But because the life of laws lies in the 
due execution and administration of them, let your eye be 
in the first place in the choice of good judges. These 
properties have they need to be furnished with: — to be 
learned in their profession, patient in hearing, prudent in 
governing, powerful in their elocution to persuade and 
satisfy both the parties and hearers, just in their judg- 
ment ; and to sum up all, they must have these three attri- 
butes: They must be men of courage, fearing God, and 
hating covetousness. An ignorant man cannot, a coward 



286 SOME RECOLLECTIONS 



dares not be a good judge. (Applause.) By no means be 
you persuaded to interpose yourself either by word or let- 
ter in any cause depending in any court of justice. If any 
sue to be made a judge, for my own part I should distrust 
him ; but if, either directly or indirectly he should bargain 
for a place of judicature, let him be rejected with shame. 
— Venders jure potest, emerat ille prius". 



Courts organized and conducted on these principles are 
an honor to any state or nation. Life, liberty and proper- 
ty are safe under such guardians, so selected. (Great ap- 
plause. ) 



President Kiles: We have with us, notwithstanding 
the absense of Judge Moody, three Judges of the Federal 
Courts. Two of them have come from Portland to be our 
guests. Judge Putnam, who comes from Portland, has 
heretofore, though we have repeatedly desired his attend- 
ance with us, been unable to come, but this year at our 
request he is here to join us in celebrating this anniversa- 
ry. I appreciate very, very much, as I know you will 
appreciate, gentlemen, his presence and the effort that he 
has made to be with us. The members of onr Bar are not 
often in the Federal Court, but certainly every one of our 
brethren who has been before him honors him most highly 
as the rest of us do from our knowledge gained of him 
otherwise. Gentlemen, I take very great pleasure in pre- 
senting to you Judge Putnam of the United States Circuit 
Court of Appeals. (Applause.) 



OF A LONG LIFE. 287 



Kemaeks of Hon. William L. Putnam^ 
Circuit Judge. 

Mr. President and Gentlemen of the Essex Bar: — 

Sometime since a friend told me that on the invitation 
of that distinguished Essex laA^^^er, Hon. Caleb Cushing, 
he attended to dine with him at seven o'clock at his resi- 
dence at ISTewburyport. He was there at seven o'clock. At 
nine o'clock Mr. Cushing asked my friend if he had dined. 
He replied "i!^o, you asked me to dine with you". "'So I 
did, and I will see what I can do". He took a candle, he 
descended into the cellar — facilis descensus — is not that 
what they said at college ? — brought up some corned beef, 
some bread and butter and a bottle of port wine ; and said 
my friend: "That was the most delightful dinner I ever 
had". What would have been his sentiment had he been 
in my place, dining with all you gentlemen from Essex, 
with this bountiful dinner and with the presence of the 
Chief Justice, and the other members of the Supreme 
Judicial Court of Massachusetts and of the Superior 
Court, including my friend for many years, Judge Sher- 
man? 

The County of Essex is a tremendous equation. Prob- 
ably there is no part of the world's surface where so large 
a proportion of the people live in absolute comfort, and in 
true happiness, as in that county. Seven cities claimed 
Homer ; Essex County claims an equal number. Ask one 
gentleman what is the leading place in Essex, and he will 
speak of Lawrence, whose early history gave us studies 
in sociology, and whose later days find her the residence 
of our friend Charles Upham Bell. Another one will 
speak of Gloucester; another of dear old Salem, with my 
late friend !N"orthend; the home of Mr. Perry, a quiet 
gentlemen who woke up one morning and found himself 



288 SOME KECOLLECTIONS 



famous wherever the English language was used in court ; 
the scene of that famous incident, when Charles Thomp- 
son asked Judge Lord for leave to wake up a juryman. 
(Laughter.) Here one thinks of Abbott, the prince of all 
clerks, and associate of all the judges, and Herrick, whom 
we gave you from Maine, unrivalled as a Sheriff. (Ap- 
plause.) Then Haverhill we cannot forget. Ask any 
man in Washington about Haverhill, and he will ask: 
"Oh, is not that the city Mr. Justice Moody came from" ? 
(Applause.) 

I have known the Bar of Essex thoroughly, and I speak 
of it without qualification with great admiration. Not- 
withstanding what my friend said here, the Bar of Essex 
has flowed over into Suffolk County as did the Saxons 
into England. It comes into the Federal courts, and we 
welcome it. There is a great deal in the old Latin maxim, 
"Imcus a non lucendo". You can illustrate so well a 
principle by stating the reverse of it. Henry W. Paine, 
of whom Judge Morton was not long ago speaking, was 
once congratulated on having a great fame in Maine and 
a great fame in Massachusetts. In reply, Mr. Paine told 
this story: There was a man at Newburyport — still in 
Essex County — in the days when the salmon in the Merri- 
mack River were famous, and when stage coaches had not 
disappeared, who took a salmon, carefully boxed, and 
started for Boston to present it to the Governor. He 
stopped on his way at a tavern, and when he opened his 
box in the Capitol here his salmon had turned to a codfish. 
(Laughter.) He went back with his codfish, stopped again 
at the tavern, and told his story, then went on to his home, 
told his wife the happenings, opened the box, and lo, the 
salmon reappeared. He threw the salmon out of the 
window saying: "You durned old fish, you are salmon 
in Newburyport, you are only codfish in Boston". 



OF A LONG LIFE. 289 



(Laughter). That illustrated Mr. Paine's idea of what 
he was in Boston. But, gentlemen of the Essex Bar, so 
far as we find you in the Federal Courts, you are salmon 
everywhere. (Laughter and applause). 

Here Judge Putnam spoke of certain criticisms recent- 
ly made on the Federal Courts and defended their use of 
the power of injunction in certain cases. In conclusion, 
he said: 

"But, gentlemen, I have gone away from my topic. I 
came here at the invitation of Mr. l^iles to meet you, to 
revive my memories of this splendid Bar which I knew so 
much better when I was younger than now, and to join 
in paying a tribute to Judge Sherman, whom I have 
known many years, with a deal of heartfelt regard and 
sympathy". (Applause.) 

Pkesedent 1!^iles: Gentlemen, three year ago, when 
Judge Aiken was appointed Chief Justice of the Superior 
Court, the first public meeting that he attended was a 
banquet of our Essex Bar Association, tendered to him as 
our principal guest, and the members of our Bar then, in 
no unmeasured terms, predicted that he would give splen- 
did success in the discharge of the duties of that office. 
How mildly, how gracefully and how efficiently he has 
discharged those duties is now an established fact, and it 
needs no support from the members of the Essex Bar 
Association. Yet I know it will give you very great satis- 
faction to hear from him to-night and to have the pleasure 
of attesting our appreciation of the faithful, the impar- 
tial, and the able manner in which he has discharged the 
delicate and important duties of Chief Justice of that 
court. Gentlemen, I now present to you Chief Justice 
Aiken of the Superior Court. (Applause.) 



290 SOME RECOLLECTIONS 

Remaeks of Hon. John A. Aiken, 
Chief Justice of the Superior Court. 

Mr. President, I assure you that I am most happy to 
renew the acquaintance of three years ago. Events, sir, 
in your distinguished service as president of this associa- 
tion have been crowding one another with a historic 
rapidity that is amazing. A year ago in this hall you 
commemorated the elevation of one of your number to the 
highest court on earth. (Applause.) And since that time 
I am told that it is going to be impossible to get any Essex 
County man to accept judicial office upon any court other 
than the Supreme Court of the United States. (Laughter.) 
It is accordingly well that you, on an occasion like this, 
and as soon as may be after the event of a year ago, com- 
memorate a Justice of the Commonwealth, that we may 
see and realize how distinguished service can be rendered 
at home with benefit to the Commonwealth, (xlpplause.) 
Judge Sherman is the first born of the Superior Court, as 
it is now constituted, and we are proud of him. His pro- 
gress through life has been preceded by no Dorian moods 
and soft recorders, nor by Lydian zephyrs, there have been 
gales, but the gales have been favoring gales. To start 
with, his natal day as a lawyer was a historic day (ap- 
plause), and an intimate acquaintance whom I will 
indicate by a wave of the left hand and leave you to guess, 
says that an explanation of a great many mysterious 
things about Judge Sherman can be found when you re- 
cur to this natal day. (Laughter.) Fortunate in this 
natal day, fortunate in his place of birth — for you have in 
mind, as the Chief Justice has reminded you, that he came 
from Vermont, an isolated, peculiar, primitive community 
(laughter), the like of which is not to be found among 
the !N'ew England States or any of the other states of the 



OF A LONG LIFE. 291 



Union — founded upon limestone, the material gets into 
their bones and makes them strong; living upon moun- 
tains, they have the spirit of the mountaineer, independ- 
ent and dominating. (Laughter). The two achievements of 
the War with Spain that are worth recording Avere done 
by Vermonters, boys with Judge Sherman. A brigade of 
raw Vermont boys that never saw the clash of arms, 
under Stannard turns the tide of battle at Gettysburg. 
Ethan Allen with "the great Jehovah and the Continental 
Congress" upon his lips and eighty of these Vermont 
youngsters at his back, takes the proudest fortress on the 
continent. I never yet saw a Vermont boy — and I live 
close to the line — that did not come down from these 
mountains with the spirit of Ethan Allen in his breast, 
and the determination to take a citadel of some sort or 
other. ( Applause. ) 

Now, there, we have got a natal day — to sum up as far 
as we have gone — and a good starting place. He comes 
to Essex. It was not very different from Vermont, except 
that the country was flat. (Laughter.) "The shot heard 
round the world", so Colonel Johnson tells me, came near 
being fired at the I^orth Bridge in Salem, and would have 
been had Pitcairn instead of Leslie been in command. 
Your lads of Essex, Mr. President, in those days, were 
circumnavigating the globe and bringing back the treas- 
ures of the East. 

N^ow, that is the next chapter in Judge Sherman's his- 
tory. Judge Richardson says — and he is the most 
practical sociologist on the Superior Court (Laughter) — 
that it is environment and not pedigree that makes the 
man. (Laughter.) 

There was in Essex County, and there is today — for 
T have been there recently — more experience lying round 



292 SOME EECOLLECTIONS 



to be gathered in than in any other equal area on this side 
of the Atlantic; and Judge Sherman fills both baskets. 

There is another element or incident of life in Essex, 
now that I have that county in mind, but I do not want 
to pass by — that it is the home of that "Broth of a Boy" 
and a "Honey Boy" who leads your orchestra. (Ap- 
plause.) And it makes me want to go there myself if I 
can find out where he lives. 

Now, I pass on to the third chapter in this memorable 
story. Judge Sherman becomes a Justice of the Superior 
Court. And with twenty years of experience we have 
filled him out and rounded him out and given him sym- 
metry and — confidence in himself. (Great applause.) 

!N'ow, gentlemen — 

Judge Sherman : Eemember, I have the close on you. 
(Laughter.) 

Chief Justice Aiken : You always have the last word. 
(Laughter.) 

When I come to write his history — and I mean ante- 
mortem, not post-mortem — I am going to mention various 
things. But I know we are running on schedule time and 
I see the President is saying to himself that we are behind 
time already. I am going to speak of that sublime, in- 
tuitive sense that always tells Judge Sherman what ought 
to be, and that determination that he always has to bring 
to pass as far as in his power what ought to be. And I 
come to my final chapter in that book, and it will have 
but two sentences: "He loved his fellow men; they all 
loved him". (Great applause.) 

Pkesident IsTiLEs: Gentlemen, we have with us to- 
night for the first time at one of our banquets a former 



OF A LONG LIFE. 



293 



Secretary of the l^avy and Governor of the Common- 
wealth, who has not only honored himself but has in every 
place, as citizen, as Secretary, as Chief Magistrate of the 
Commonwealth, honored the Conmionwealth. I present 
to you the Hon. John D. Long. 



Speech of Hon. John D. Long. 

Our presiding officer was very wise and shrewd in sug- 
gesting to the speakers of the evening, as he did to me, 
very delicately but very decidedly, that they should limit 
their speeches to five minutes each. Brevity is the soul 
of wit, and the lack of it is the rock on which most of us 
after-dinner speakers split. Certainly to-night brevity is 
desirable, for, while one might speak till morning without 
exhausting the praises of our beloved and honored guest, 
it is certainly more fitting that many, aye each one here, 
should add a leaf to the crown that we are weaving round 
his head. 

Fifty years of professional life. Fifty years without 
a stain or a dishonor! Fifty years with the respect for 
him of all his fellow-members of the Bar and confi- 
dence in him of all his fellow-members of the old county 
and the Commonwealth accumulating like a rolling snow- 
ball! It is not, of course, for me, especially after what 
has been said, to rehearse the record of his career as citi- 
zen, lawyer, soldier. District Attorney, Attorney General, 
and now and for many years a Judge. That record is so 
bright and clear that it stands out in letters of light that 
need no rehearsing. Rather, with my sentimental bent, 
my heart turns, as your hearts turn, to the true friend- 
ship of now these many years, the kindly face and hand 
that have always given me warm greeting, the pith of 



294 SOME EECOLLECTIONS 

common sense, the candor of sincerity, the freedom from 
sham or affectation, the downright, straightforward hon- 
esty that had won and kept my respect, yes, my affection, 
and yours. 

There are many types of what we call the New England 
character. Of one of the best of these is Judge Sherman. 
Born among the Vermont hills, blown through wdth their 
breezes, flavored with the farm, he yet easily adjusted him- 
self to the environment of our Massachusetts complexity 
of industrial, commercial, political, professional and social 
life, and yet has never lost the simplicity and quality 
of the rural beginnings. Who in all our Commonwealth 
is more noted than he for the quaint, apt, homely turn of 
speech, the electric spark of Yankee mother-wit that has 
so often embraced in a single word or phrase the whole 
gist of an argument, the rivet of a demonstration ? (Ap- 
plause.) 

Fifty years of honest, loyal service! And he has his 
reward. He has it here to-night, not in treasures which 
moth or rust doth corrupt and thieves break through and 
steal — it would go mighty hard with the thieves if the 
Judge should get after them — but the treasures of the 
consciousness of a life that is the full corn in the ear, the 
consciousness of being loved and honored by all who know 
him. Reward ! A leading merchant showed me the other 
day a check for $100,000 payable to his order, which he 
said was the profit on a single venture. Somehow it 
touched not my wonder or my envy, but a sort of pitying 
sympathy. He already had enough and more than 
enough. He had neither wife nor child. What could he 
do with it ? What could it buy or bring to him that 
would add one cubit to the stature of his happiness or his 
comfort or even his self-respect? Except to give it away 
he might as well toss it into the fire. What comparison. 



OF A LONG LIFE. 295 



Judge Sherman, could it bear, or, had it been ten times as 
large, could it have borne to the rich harvest which 
crowns your years and your labors — you who have every- 
thing that should accompany old age, as "Honor, love, 
obedience, troops of friends". 

Yes, Judge, troops of friends, the best gift this world 
can give. And I, as one of them with all my heart join 
in the tribute which we pay to your good life, your hard 
head, your true heart. (Great applause.) 

8ero in coelum redeas! 

Peesident Niles : When our present Attorney General 
entered upon the discharge of his duties, he was a guest 
of this association and addressed us. He has not been with 
us since until to-night. He is a successor of our Brother 
Sherman in the office of Attorney General, an office which 
he has certainly well filled and honored. Gentlemen, I 
introduce to you Dana Malone, our Attorney General. 

(Applause.) 

Remarks of Hon. Dana Malone, 
Attorney General. 

Mr. President and Gentlemen of the Essex Bar: — 

This is the first notice that I have had that I was to be 
called upon to speak this evening. It is always a difficult 
thing to speak upon an occasion like this, even if one has 
had some time for preparation. But I am always glad to 
speak when I can for the Commonwealth, the great, old 
Commonwealth of Massachusetts. The office of Attorney 
General has almost always been filled by great lawyers; 



296 SOME EECOLLECTIONS 

it was never more efficiently filled than by the gentleman, 
the good Judge whom you honor here to-night. (Ap- 
plause). 

I come from Franklin County, one of the smaller 
counties of the old Commonwealth, but the loyalty of the 
county to the courts is as great there as it is in your more 
populous counties in the east. It is always a pleasure to 
bear witness to the fidelity and the character of the Bench 
of Massachusetts. It gives me the greatest pleasure, so far 
as I can represent the Commonwealth, to extend the greet- 
ings to the members of the Essex Bar and to Judge 
Sherman and to say, as I do now, that he has deserved 
well of this grand old Commonwealth. I thank you. (Ap- 
plause.) 



President Kiles: The senior member of our Bar is 
present and I had hoped that we might have time to 
present him to you, but as we must dissolve this meeting 
at about eleven o'clock, our time is so short thati come di- 
rectly to what I promised to in the beginning, an address 
by one of our own members, who has been selected as the 
neighbor, the professional friend of our Brother Sherman, 
coming from his home city. We have thought it fit that 
he should present to our brother, in behalf of our Associa- 
tion, our congratulations and our most affectionate regard. 
Therefore, without delaying you another moment, I take 
great pleasure in presenting to you our brother John P. 
Sweeney of Lawrence. (Great applause.) 



OF A LONG LIFE. 



297 



Colonel John P. Sweeney delivered the following 
tribute to Judge Edgae J. Shekman". 

Mr. President and Gentlemen of the Bar: 

To have arrived at a point in life which marks a period 
of fifty years of service in the administration of the law 
is an event of some significance even when the period em- 
braces nothing beyond the humdrum and routine experi- 
ence of the ordinary practitioner. But when that span of 
life has been spent largely in the public view, in faithful 
and conscientious service to the public it is an achieve- 
ment that falls to the lot of few men, and that is worthy 
of at least a passing notice. And when the close of that 
period finds the actor still vigorous and able, with physical 
and mental powers unimpaired, unsoured by the world 
and sustained by a cheerful and sane philosophy, still do- 
ing the day's work and pulling more than his own weight, 
the occasion is one for rejoicings and congratulations. A 
meritorious record of service in the civil war, for fifteen 
years the district attorney of Essex, for nine years a reg- 
ister in bankruptcy, for five years attorney general of the 
Commonwealth, for twenty-one years a justice of the Su- 
perior Court, of which he is now the dean in point of 
service, these are the incidents in the public life of our 
honored brother whose jubilee as a lawyer we celebrate 
to-night. 

It was a happy thought, a fitting suggestion that the 
annual dinner of our association should recognize this 
event in the life of our friend, for Judge Sherman is 
peculiarly a representative of the bar of Essex County, a 
link in the chain of tradition that unites the present with 
the glorious past. It seems a far cry to 1858, when many 
of those who may be said to have achieved some local dis- 
tinction at our bar, some of whom have passed away, 



298 SOME KECOLLECTIONS 

were not yet born. It carries us back to that golden age, 
to the day of the two Lords, of Perry, of Huntington, of 
Ives and of Abbott, names whose memories we honor, in 
whose distinguished company our friend began his prac- 
tice and with whom he was wont to contend. 

And yet it all seems to be an illusion, for when we ob- 
serve him at his work, and see how easily he does it, when 
we note the frolic that enlivens his serious duties, when he 
startles us with his quaint comments on men and things, 
when we catch the gleam of that native shrewdness that 
sizes up all situations and that penetrates all disguises, 
he seems to us a child of the present age and we are forced 
to realize that he is fully up to date, that he is still the 
friskiest colt in the judicial pasture. And we know 
that if he were coming down from the judge's stand and 
enter himself in the running, he would be entitled to no 
handicap for age and that it would be sound judgment to 
play him for the place. His conduct seems to belie his 
years, and he must not blame us if we judge him by his 
actions. We decline,, therefore, to regard our friend as 
an old man. In this instance, we refuse to be bound by 
the record or, if necessary, we will move to amend it. To 
us he is not a grave and reverend senior to be venerated 
afar off, but a lively and cheerful companion whose flow 
of spirits the passing years cannot check and who sets us 
the example of a true philosopher. To paraphase 
Shakespeare a little: for us "Age cannot wither nor cus- 
tom stale his infinite variety". 

This is neither the time nor the place for an estimate of 
the career of our friend, much of which we hope and be- 
lieve still lies before him. I shall not therefore afford 
him the pleasure of listening to his own obituary by an 
enumeration of all the qualities of mind and of character 
that have contributed to his success upon the bench, but 



OF A LONG LIFE. 299 



some of them are so conspicuous that an occasion like this 
would be incomplete without a reference to them. iN^ature 
endowed him with a large share of practical wisdom and 
good sense. He was fortunate also in possessing the gift 
of a kindly and social instinct which led him to mingle 
with his fellow men, to become acquainted with them and 
with the feelings and motives which actuate them. His 
long service as district attorney and an extensive civil 
practice afforded him ample opportunity for the study 
of human character, so that when he came to the bench 
he brought with him a native aptitude supplemented and 
enlarged by his experience as a trial lawyer. If we were 
asked to name the leading mental trait of our friend, I 
think we would all agree that it is his intimate knowledge 
of the world in its practical aspect. His life has not been 
spent in the closet, but it has been lived in the open, in 
close contact with human nature. He knows men and 
things. There is no other quality so valuable for a nisi 
prius judge. Without it, no matter how well read he may 
be, there is something lacking which largely neutralizes 
his work and renders it conspicuously defective. My 
friend would never forgive me were I to speak the lan- 
guage of undiscriminating eulogy. There are those who 
surpass him in extent of reading, though there are few, 
perhaps, who have a readier working knowledge of Mass- 
achusetts cases, but I think I express the sentiment of the 
bar when I say that our friend has been and is today one 
of the most useful judges on the bench, with a large ca- 
pacity for all round work, and that he has a conspicuous 
talent for wise and practical administration of the law. 
Far be it from me to deprecate that learning in the law 
which comes from close and patient application to its 
study. I have a genuine respect for legal erudition, all 
the greater because I have never been able to acquire it. 



300 SOME KECOLLECTIONS 

but I have also an admiration for those who, without 
any very close or extensive reading seem to have an innate 
perception of legal principles, a perception which seems 
to be grounded on that common sense of which the law 
is said to be the refinement. Some irreverent individual 
has said that the law is something which everybody is pre- 
sumed to know, which nobody does know and which the 
judges of the Supreme Court are paid to guess at. Our 
Supreme Court judges, of course, have no occasion to 
guess at the law, but if, by guessing, we mean the gift of 
intuition, then the remark, if applied to the justices of 
the Superior Court, is not irreverent. For to them there 
come sudden occasions of doubt and perplexity when new 
questions of law or practice have to be passed upon with- 
out the opportunity for reading or for consultation. In 
such emergencies nobody is quicker or keener than our 
friend. Judge Sherman. If he doesn't know what the law 
has been decided to be, he knows what it ought to be and 
in unprecedented situations his intuitions are pretty sure 
to be correct. 

He is one of the men whom we seek when difficulties 
perplex us, and whether we encounter him on the bench 
or off we usually get the shrewd suggestion that makes 
the crooked path plain and straight. He is a resourceful 
man and his legal weapons are always where he can lay 
his hands on them. To young practitioners he stands in 
loco parentis, ever ready with the helpful word and al- 
ways eager to render first aid to the injured. Unlike one 
of his Vermont maples he can be tapped at any season of 
the year and nobody ever draws on him without getting a 
supply of legal sap. Even his horse-shed opinions are 
valuable. 

It has fallen to his lot while on the bench, to be con- 
fronted with many large and important cases presenting 



OF A I.ONG LIFE. 301 



situations involving new questions, and his native sagacity 
and practical wisdom have enabled him to solve them 
with credit to himself and satisfaction to the public. For 
Judge Sherman is a typical 'New Englander in whom are 
wrapped up the qualities of good sense, homely wisdom 
and shrewd perception that go to make up the race. He 
has the solid basis on which to ground a successful career 
in almost any field of human activity. These are the 
qualities which, joined to a keen discernment of men and 
affairs have made him a strong nisi prius judge, and 
which have won for him the respect and esteem of the bar. 

One of his distinguishing characteristics is his tactful- 
ness. He has the rare faculty of dealing with delicate 
situations with diplomatic skill. Wise and politic, he is 
the great peacemaker, the great harmonizer. Amid the 
strife of contending counsel, he never loses sight of the 
ground whereon compromise is possible, and not the least 
valuable of his services are those by which he leads par- 
ties to a settlement of their disputes. 

When we are before him we know that long before the 
trial is over he has a correct apprehension of the truth of 
the controversy, in spite of its conflicting claims. His 
alert intelligence quickly analyzes the motives of parties 
and witnesses, sees through the unfounded pretensions of 
both sides and discerns the justice of the cause to which 
our zeal as counsel renders us blind. And sometimes he 
lets us know that he sees. Occasionally he puts leading 
questions to counsel. For, although born in Vermont, our 
friend's motto is emblazoned on the coat-of-arms of the 
State of Maine. Things are not left to drift in his court. 
He has the notion that a judge has some other function 
than merely to keep order in the court. As a consequence, 
there is something doing most of the time and trials pro- 
ceed with some dispatch. While he recognizes the prin- 



302 SOME RECOLLECTIONS 

ciples of practice and the rules that govern evidence and 
gives fair scope to legitimate strategy, nothing that he 
thinks savors of chicane or is at war with substantial jus- 
tice ever gets by the Court. And before him the young 
and inexperienced practitioner, with justice on his side, 
has a fair chance to use his sling. 

The thing that interests us most in the trial of a case 
is the judge's charge. While the walls are still echoing 
our eloquence and the jurors are struggling out from un- 
der the avalanche of words in which we have buried them 
and striving to throw off the hypnotic spell that we have 
cast upon them, the judge rises to make his charge, and 
we sit up and begin to take notice. A distinguished 
member of the bar gave me, the other day, an imitation of 
what he calls the phonographic charge in personal injury 
cases, consisting of a string of severely correct legal plat- 
itudes, interspersed with quotations from decisions in the 
plain and simple language of the Supreme Judicial Court 
that is so readily comprehensible by the average juryman. 
"Now, nobody ever heard Judge Sherman deliver a phono- 
graphic charge. Once in a while he gives us Com. vs. 
Toohey, but as a rule his charges are expressed in a lan- 
guage that is peculiarly his own. If a hypercritical lis- 
tener might deem them lacking in literary merit they have 
at least the undeniable merit of having some relation to 
the facts in the case. You might think that sometimes 
they are too closely related — next of kin, as it were, de- 
pending upon which side of the case you happen to be on. 
They are spoken in the vernacular and usually contain 
some quaint and homely illustrations that appeal to the 
common sense and judgment of practical men. They are 
not lacking in local color. Sometimes it may seem that 
the color is laid on a little too thick, but the judge does 
not belong to the severely classical school of word-paint- 



OF A LONG LIFE. 303 



ers, but rather to the modern impressionistic school, in 
which the paint is put on with free and easy strokes of 
the brush. And they usually make an impression, on one 
side or the other. I have heard charges that satisfied 
neither side — but never from Judge Sherman. But, after 
all, it is only a question of perspective. When we are too 
near the picture we see only the brush marks. We cannot 
see the forest for the trees. But when the contentions of 
the hour are past and we are able to look back upon the 
event, free from zeal or bias, when we regard them in the 
tout ensemble, they appear to have been, after all, what 
justice required. 

l^Tevertheless, it is cruel sometimes the way in which 
he demolishes the structures we have so carefully built in 
argument, or punctures the bladders on which we have 
fondly hoped to swim with a favoring tide. It makes us 
gasp, too, to see him get around the end and run off with 
the ball. But it is done with an apparent giiilelessness 
that compels our admiration. 

Among the traits that we admire in our friend is his 
courage, the courage that makes him ready to assume re- 
sponsibility and to act when action is required. In a try- 
ing situation, in a time of misdirected popular sentiment, 
when public clamor is hostile to the even course of justice, 
we know him to be a man ready to do his duty. No in- 
fluence is strong enough to swerve him from the obliga- 
tions of his oath of office. Beneath his genial and kindly 
surface there lurks something of the Puritan blood that 
makes for law and order. 

These are some of the leading traits that are manifested 
in his long and useful public career. They are illustrated 
by the incidents that make up the record of a life Avell 
spent and that have made him a notable figure in the 
Commonwealth. In the years that have passed he has loft 



304 SOME EECOLLECTIONS 

the impress on his time of a strong, rugged and forceful 
personality. He stands forth in his generation with a 
positive individuality that has made him a leader among 
men. We cheerfully accord him the station that has 
come to him, not by accident or good fortune, but by man- 
ful effort amid difficulties that would have daunted a 
weaker man. Looking back on his career, we know that 
the past, at least, is secure, and in that past we see the 
harbinger of what the future will be. We congratulate 
him on this auspicious day and bid him go forward to 
further achievements with the assurance that Essex 
County is proud to number him as one of her sons. 

But after all is said, the qualities that endear a man to 
his fellows are the social qualities. We may admire 
another for his abilities and respect him for his achieve- 
ments, but we cherish him for those traits that appeal to 
our yearnings for friendship and companionship. Those 
qualities that make a man a good neighbor, a genial com- 
panion, a cheerful associate, a sympathetic friend, these 
are the things that endure, and without them any dis- 
tinction, however great, any station however exalted, are 
barren and cold. And these qualities our friend possesses 
in a su]3erlative degree. Genuinely democratic in his 
nature, simple in his tastes, charitable in his judgments 
of others, loyal to his friends, cheery and kind, human in 
his failings as well as in his virtues, he has won not merely 
our esteem as a judge, but our affection as a man. We 
rejoice that, on the whole, fortune has dealt with him so 
kindly, and we wish for him 

"An old age, serene and bright. 

And lovely as a Lapland night", 
"xind that which should accompany old age, 
As honor, love, obedience and troops of friends". 



OF A LONG LIFE. 305 



President !N'iles: Gentlemen, after all that has been 
said complimentary to our distinguished brother, there 
seems to be absolutely nothing left for me to add, and if 
you will permit me simply to express my concurrence in 
all that has been said I will leave it there and not attempt 
longer to repress the impatience that I know every one of 
you feels to hear from our guest of honor. I, therefore, 
without further delay, present to you the Hon. Edgar J. 
Sherman, the Senior Justice of our Superior Court. 
(Great applause; the entire company rose and joined in 
singing "For He's a Jolly Good Fellow".) 



Eemakks of Judge Sheeman. 

Mr. President, guests of this occasion, and brethren of 
the Essex Bar: 

A countryman was indicted for an offense. The trial 
proceeded. He did not take any part in it, by cross- 
examining the witnesses, or arguing the case, nor was he 
asked to. The district attorney argued, the judge charged 
the jury and the defendant was convicted. The clerk 
then asked him if he had anything to say about his sen- 
tence. He arose and said, "If I had been asked earlier in 
the proceedings, I should have been glad to have said 
something; but after hearing those lying witnesses, and 
hearing that man who claims to represent the people (the 
district attorney) and after listening to that old bald- 
headed cuss in the box, who spoke against me, the subject 
in hand seems to be disposed of. But if there is any other 
subject which you would like to have me discuss, I shall 
be willing to speak". 

I seem to be in a similar position. The old bald-headed 
fellow in the box fits Chief Justice Aiken. The subject in 



306 SOME EECOLLECTIOIsS 

hand seems to have been disposed of by the preceding 
speakers. 

Yes, gentlemen, I have been at the bar fifty years! I 
was admitted to the bar before Chief Justice Mellen in 
the old Court of Common Pleas, March 17, 1858; That 
was more than a year before the Superior Court was es- 
tablished. I cannot make it seem so long as the record 
shows it to be. 

When I arose to speak, I thought I had something to 
l.xj in my head — not on paper — but your kind reception 
has quite overcome me. 

Perhaps I can say something concerning the difference 
in practice and in trials fifty years ago and now. Before 
I was admitted to the bar, I attended a session of the 
Supreme Judicial Court at Salem. An aged judge was 
presiding, and Benjamin P. Butler and Otis P. Lord 
were much in evidence. Mr. Lord had made a motion to 
require the client of Mr. Butler to furnish an indorser 
on the writ. Such a motion as that would ordinarily be 
disposed of now in twenty minutes. The hearing lasted 
all the forenoon, and the biographies of Mr. Lord and Mr. 
Butler were carefully discussed and considered in an un- 
favorable light. It was a personal quarrel between those 
two gentlemen ; each saying all the unfavorable things he 
could of the other. 

The practice in the Courts then was very different 
from what it is now, in Essex, Middlesex and Suffolk. 
If a witness in court came out with any character left, 
he considered himself fortunate. Witnesses were abused 
and brow-beaten, counsel were quarrelling with each 
other, and occasionally were in an altercation with the 
judge. I wonder that justice could be administered under 
such circumstances. 

But, gentlemen, that practice has all passed away. We 



OP A LONG LIFE. 307 



have no such scenes in court today. The bar is to be 
congratulated on this change, because they have had very 
much to do in bringing it about. Such men as Robert M. 
Morse, Lewis S. Dabney, Ex-Governor Long, Samuel J. 
Elder and the gentlemen I see before me have been in- 
fluential in this particular. In fact, those attorneys con- 
duct themselves toward parties, witnesses, each other, and 
toward the Court, in about the same way as they would 
toward visitors in their own parlors. In this way we 
believe that justice is much better administered now than 
formerly. 

The gentlemen who have spoken have told you what I 
have been doing since I was admitted to the bar. Yes, 
gentlemen, it is true, I have been in public office for forty 
years. General Grant and I were elected to office on the 
same ticket, in 1868, he to the office of President of the 
United States, and I to the office of district attorney in 
Essex, and I have been in office since. I am not like 
the boy whose mother had occasion to chide him. She 
said, "Johnnie, when you went into the pantry there were 
three doughtnuts there ; now there are only two". "Well", 
said Johnnie, "I guess I overlooked the other two in the 
dark". I do not seem to have overlooked anything in the 
dark. (Laughter.) 

When I was offered a place upon the bench of the Su- 
perior Court, I had some doubt whether I was qualified 
for it. I had a very intimate friend, the late Elbridge 
T. Burley, well known to you gentlemen as a very able 
lawyer, a frank, plain, blunt and truthful man. I did not 
feel like asking him what he thought about my qualifica- 
tions. But a lawyer did. He said to Mr. Burley, "It 
seems that Sherman is going to be a judge. What do you 
think of it" ? "Well", replied the squire, "Sherman has 
had a large experience, has tried a great many cases, has 



308 SOME EECOLLECTIONS 

good sense, and when he does not know what the law is, 
he knows what it ought to be, and I think he will make 
about the average judge of the Superior Court". I have 
been trying since my appointment to be the average judge 
of that court and I have succeeded, if you take the opin- 
ions of the Supreme Court on that subject. (Laughter.) 

I am a good deal embarrassed in speaking here tonight, 
in the presence of our Supreme Judicial Court, because 
that court has lately offered some criticisms on my 
speeches. (Laughter.) In one case, where I tried to make 
the parties settle — and talked about it — Mr. Justice Lor- 
ing, who wrote the opinion, says that I talked too much 
on that subject. (Laughter.) In another case, the Court 
says that I did not talk enough. So you see I am in an 
embarrassing position here. 

But I would like to say one thing in behalf of our 
court, as distinguished from the Supreme Judicial Court. 
We have to decide our questions on the instant; we have 
to shoot our game on the wing (applause) ; and the Su- 
preme Court have an opportunity to put their guns at 
rest, to take plenty of time, and have able lawyers to 
show them how to shoot. And I can show you a case 
where four of the justices decided that they finally hit 
the game, while the other three insist that the four jus- 
tices came nowhere near the game. (Applause.) So 
jou must be charitable to our judges, who have to shoot 
their game on the wing. 

Now, gentlemen, joking aside, I want to say some- 
thing about our Supreme Court. You hear some lawyers 
— not in Essex, I am glad to say, but some opinionated 
lawyers in Suffolk — say, "Oh, the Supreme Court is not 
what it used to be; all the great judges on both courts 
fire dead." !N'ow, gentlemen, I have no sympathy with 
that sentiment. I have known that court for over fifty 



OF A LONG LIFE. 309 



years — and you have given me credit for good sense. In 
my opinion we never had a better court than that court 
is today. (Applause.) They are all able, faithful, con- 
scientious justices, from the Chief Justice to the last 
appointment. That court has much more to do than it 
formerly had. It is a hard-working court. 

We of the Superior Court believe that appointments to 
the Supreme Court should come from our court, by way 
of promotion, unless a better lawyer can be found outside. 
Of course, we have three notable cases coming within the 
rule I have stated. Take the case of Mr. Justice Morton. 
He has the Morton ability and common sense — a cousin 
of Marcus, senior, and Marcus, junior — and he comes 
clearly within the rule. And Mr. Justice Loring, we all 
know to be a man of great learning and ability, and he has 
fully justified his appointment as within the rule. And 
if Mr. Justice Rugg keeps on writing such opinions as 
he has already given us, there will be no doubt about the 
propriety of his appointment. 

I know but very little about the administration of jus- 
tice in the United States courts; but ex-District Attorney 
Boyd B. Jones assures me that the judges are first-class, 
and Boyd knows. 

I would like to say a word about our court. When I 
was appointed, our court consisted of twelve judges, and 
now we have twenty-five. The late Judge Berry said that 
we ought to be numbered and uniformed in order to keep 
track of us. In my opinion, our court was never in better 
condition than it is today, for the work it has in hand as 
the great trial court of the Commonwealth. 

A word concerning our Chief Justice Aiken. When he 
was offered the position of Chief Justice by Governor 
Douglas, he was unwilling to accept it. He is really a 
very modest man. It took much argument from judges 



310 SOME EECOLLECTIONS 

and lawyers to induce him to accept the appointment. 
We have always been most fortunate in our Chief Justices, 
but we never have had a man better beloved and more 
justly popular with bench, bar and the public, than Chief 
Justice Aiken. (Applause.) 

I would like to advise the young lawyers who may be 
thought of for judicial positions. Do not aspire to go 
directly upon the Supreme bench, but come first to the 
Superior Court. Those gentlemen see but few people, 
and I should think they would become lonesome; while 
we are engaged in great public trials, seeing witnesses, 
jurors, lawyers, etc. That court has but little fun and 
enjoyment, while we have considerable. 

Let me give you a look into our lobby and have you see 
how serious and sedate judges act. When Judge Dunbar 
was on the bench, he came into the lobby one day and 
addressing me, said: "I saw the foreman of your jury, 
and he says that you make matters very plain and clear 
in your charges." I knew better than to ask any ques- 
tions, but some other judge did. So Judge Dunbar went 
on, "He says that in charging a jury in a case of trespass, 
the judge gave this illustration: 'If a man comes on to 
the lawn in front of your house, and he is objectionable, 
you have a right to order him off, and if he does not go, 
you have a right to use sufficient force to put him off; 
but you have no right to kick his back-sides across the 
street' ". The judges laughed. Thereupon Judge Ham- 
mond, who was sitting with his feet upon the table, said: 
"I do not believe that Sherman said that". I did not ask 
why; I knew better than that; but some other judge did 
ask why, and Hammond replied, "Because that is good 
law". (Applause.) Young man, go on to our court, enjoy 
life and be happy. 

Gentlemen of the Essex Bar, I fully appreciate your 



OF A LONG LIFE. 311 



kindness in tendering me this banquet. I was elected 
district attorney by your influence, and partially, I was 
also elected attorney general by your efforts and influence. 
What happened then I think never happened before, and 
probably never will again. I received the vote of every 
delegate from the county, save one, at the Worcester con- 
vention, which enabled me to beat a better man — the late 
Judge Barker — and secure the nomination for the office 
of attorney general. 

After so many kindnesses, you observed that I had 
passed the biblical line of life, more than "three score 
and ten years," that most men near that time in life go 
dovra in sorrow to the grave. You probably have read 
the lives of the Chief Justices of England. You see the 
old men, as they give up a long life, become despondent 
and gloomy, and perhaps hear them say, "Life is not 
worth the living" ; that "It is all a fleeting show for a 
man's delusion given". But, gentlemen, I assure you 
that I have none of that feeling. I have a happy, 
philosophical and contented disposition. I have enjoyed 
life to the full. Life is worth living, whether it ends in 
a great sleep and rest, or whether it goes on. I have no 
anxiety for the future. When the time comes for me to 
pass over to the great majority, if I am then in the 
possession of my mental faculties, I shall go with all the 
flags flying. (Great applause.) 

I am very much obliged to you, Mr. President, to the 
members of the bar, to the judges of the United States 
courts, the judges of our Supreme Court, and to my as- 
sociates; to one and all who have come here to extend 
greeting and congratulations. I thank you all from the 
bottom of my heart. I bid you all an affectionate good 
night. 



312 some kecollections 

Lettee of Hon. Daniel Saunders. 

Partner of Judge Sherman from 1858 to ISSJf.. Mr. 
Saunders is the Senior Member of the Essex Bar, now 
eighty-six years old. 

Laweence, March 26th, 1908. 
William H. ]^iles, Esq. 

President of the Essex Bar Association. 
My Dear Brother Niles: — 

I want to thank you for the admirable arrangements 
you made for the Bar dinner given in honor of my old 
partner, Judge Sherman. As a lover of justice, I am 
happy to say that he got his just deserts when he was 
sentenced for life to sit on the Superior Court Bench, 
with the only hope that his sentence might be commuted 
by being sent to the less punitive institution, the Supreme 
Court. 

The Essex Bar very soon found, after he came to it, 
that he had a way of taking things, a knack of getting 
verdicts which some of us thought did not belong to him ; 
not content with getting his brothers' verdicts away from 
them, he took the District Attorneyship, and then he 
grabbed the Attorney Generalship and a lot of other 
things, leaving of what he wanted, only those things which 
he had overlooked. So it went on until it became evident 
that if he were allowed to go at large there would be 
nothing left for the rest of us; so, holding a council we 
advised the Governor, for the good of the community and 
for the safety of the Bar, that he should be confined at 
hard labor, for the rest of his life on the Superior Court 
Bench. This was done and he was committed; I under- 



OF A LONG LIFE. 313 



stand that he has proved a model prisoner, and by his 
good conduct (although some complain that he had not 
forgotten how to get verdicts) he is entitled to favorable 
consideration, and there vs^ould be no protest if the Execu- 
tive should extend clemency in his case, and allow him 
to serve out the remainder of his sentence on the Supreme 
Judicial Bench. But, seriously, I can say that the honors 
which have come to him have been well earned and well 
bestowed. As a lawyer (and I knew him well, and speak 
from knowledge), he was diligent in the preparation of 
his cases, able in their presentation, strong and eloquent 
in argument and successful in procuring verdicts for his 
clients. Always courteous to his brother lawyers and most 
respectful to the Courts. His word was his bond, which 
never went to protest. As a prosecuting officer his motto 
was "let no guilty man escape", and he lived up to it. As 
a judge he has proved the wisdom of his selection to that 
high office. It only remains to be said that the record of 
his life is a higher eulogy than any of the just compli- 
ments that were so well paid to him at the meeting of our 
Association on the occasion of the fiftieth anniversary of 
his legal life, so well spent in the service of our good old 
Commonwealth. 

There is one phase of his life of which I cannot speak 
as well as others, his brothers in arms. When the glow of 
patriotism spread from mountain top to mountain top 
and illuminated every valley, he caught and felt that glow 
and enlisted as a soldier in the service of his country. It 
appears from the records of his regiment that he was soon 
promoted to a captaincy, and in the assault on Port Hud- 
son, June 14th, 1863, he was brevetted Major for "gallant 
and meritorious services" ; just such conduct as his friends 
expected of him. And here it may be proper to add, 
without in the least detracting from the gallant services 



314 SOME KECOLILECTIONS 

of his brother officers, that he was the only man in his 
regiment who was brevetted for "gallant and meritorious 
services". 

Our bar is justly proud if not a little envious of him. 

Trusting that our Association may long have the bene- 
fit and honor of your presence as its presiding officer, I 
am, 

Most Sincerely Yours, 

Daniel Saundehs. 

Lettee of Haevey N". Shepakd. 

Boston, March 17, 1908. 

William Henry Kiles^ Esq., President Essex Bar 
Association. 

Brother Niles: — 

Unfortunately my throat is inflamed from a severe 
cold and my physician has forbidden me to be out even- 
ings; but nevertheless I am going to make the venture 
to be there for a short time in order to pay to Judge 
Sherman my tribute of most sincere affection and esteem. 

I came first to know him upon an occasion which prob- 
ably he does not now recall but which then made a strong 
impression upon me. I had just come to the bar, and was 
sent from the office where I was a student, to testify as 
to some matters which had arisen in the office, before the 
Grand Jury. I never had been in court, or before any 
judicial tribunal, and naturally was nervous at the pros- 
pect. I cannot forget the courtesy and kindness with 
which I was received by Judge Sherman, then the District 
Attorney, which at once placed me at ease. Later, I had 



OF A LONG LIFE. 315 



the honor to serve with him for five years as his First 
Assistant Attorney General, and this association deepened 
and strengthened my feelings. 

His administration marks the beginning of the change 
which has continued on the same lines in this great office. 
Before then the Attorney General treated the Common- 
wealth as any other client, and attended to its affairs as 
he did to the affiairs of other clients, in his own office, 
wherever that might be. In his administration a removal 
was made to a state building, and since that time the 
Commonwealth has had first place. !N^aturally, with no 
fixed office, the records were deficient, and then began the 
custom of keeping records of all opinions, a custom which 
has been followed ever since. Before then the duties of 
the Attorney General were defined with considerable 
laxity. Custom, rather than law, had established relations 
which led him to appear before the Committee on Claims, 
for instance, as a paid attorney would, to resist every 
claim, however just he might believe it to be, examine 
witnesses, and make an argument against its allowance. 
This was changed, so that, instead of taking part in the 
investigation of facts, he attended to the higher and more 
proper duty of his position in giving advice solely upon 
the law. Also it had grown to be the habit in town of- 
fices, and in all parts of the state, to put verbal inquiries 
to the Attorney General and receive verbal advice as to 
matters arising in their town affairs. This loose practice 
frequently resulted in misunderstandings, and of course 
was without warrant in law. All this was changed, so 
that, from then on, it has been distinctly understood to 
whom his opinions are due. Of course, being without the 
sanction of law, his opinion, given under such circum- 
stances, had no binding force, and was of no legal value. 

Also it has been the custom for the Attorney General 



316 SOME RECOLLECTIONS 

to argiie all exceptions in criminal cases, a custom which 
every lawyer perceives at once was a disadvantage, as no 
man can understand so well the meaning and intent of 
an exception as the lawyer who took it when the case was 
on trial. The process to obtain the surrender of fugitives 
from justice was examined with great care, changes were 
made, and rules then defined, which ever since have been 
followed. 

The civil business of the office grew each year in im- 
portance, and some of the cases were of great value in de- 
termining the legal rights of the Commonwealth in most 
important respects. Such, for instance, as those relating 
to the South Boston Flats, the Hotel Kensington, and 
the Western Union Telegraph Company. One important 
item of civil business at that time, which no longer is 
found there, arose from the ownership and control by the 
Commonwealth of the Hoosac Tunnel. The Attorney 
General was the legal adviser of the Manager of the tun- 
nel ; and, once a year, at least, he was obliged to consider 
all the accounts, and from time to time he had to pass up- 
on the many perplexing questions which spring up in the 
management of a railroad. 

What specially impressed me during my association 
with Judge Sherman was not only his great tact in dealing 
with all the many and various calls upon him, but also 
the wonderful facility by which, as though by intuition, 
he came to a conclusion what the law must be; and I do 
not remember an instance when upon thorough examina- 
tion afterwards he was found to be wrong. These remark- 
able qualities, it is needless to say, have characterized him 
as a judge of the great trial court of the Commonwealth; 
while his kindness of manner and unfailing courtesy have 
endeared him to all who have been so fortunate as to come 
into contact with him. 



OF A LONG LIFE. 317 



To me it is one of the dearest recollections of my life 
that for five years I was associated with him so intimate- 
ly, and came to know him so well ; and the affection 
which I then formed has grown stronger every year. May 
he long be spared to us as an inspiring example of that 
kind of public service which every earnest and sincere 
lawyer ought at all times to be willing to give. 

Yours fraternally, 

Harvey I:^. Shepaed. 

Letter of Samuel J. Elder. 
Pemberton Building, Boston, Mass, March 19, 1908. 
Hon. Edgar J. Sherman, Superior Court, Boston. 
Dear Judge Sherman: — 

Pray let me thank you again for your courteous re- 
membrance of me and for the ticket to the banquet last 
Tuesday of the Essex County Bar in honor of the Fiftieth 
Anniversary of your admission to practice. 

It is entirely impossible for me to express the pleasure 
and gratification which the occasion gave me. All the 
way through I was bearing in mind the distinguished 
assembly which gathered in the Old Boston Museum to 
greet William Warren on the Fiftieth Anniversary of his 
first appearance upon the stage and of the superb enthu- 
siasm which pervaded the audience. Mr. Warren, called 
before the curtain, made a charming little speech, in the 
course of which he said : 

"Although I have not scaled the heights of Parnassus, 
I am profoundly grateful to have found so cozy a nook on 
the mountain side." 



318 SOME EECOLLECTIOISrS 

But Mr. Warren was mistaken. He had scaled the heights 
of Parnassus. He had done far better than to have been 
an itinerant star travelling through the States behind 
great posters and announcements. He had touched the 
hearts of a great community; he had portrayed life as it 
was in every phase, from the humblest to the highest, and 
he had left an enduring impression of faithfulness to 
truth in his art. 

You were equally deprecatory of your achievement in 
your charming reply at the close of the banquet. You 
will pardon me, because I am not saying it to your face, 
for saying that you have touched the hearts of every one 
with whom you have come in contact. You have known 
the lives and struggles and sorrows of all the people in 
the State, and you have held with strong hand, the 
balances, and with a merciful hand have tempered judg- 
ment. 

You might very well say as Kipling did to his kinsfolk 
in India on leaving: 

"I have tasted your bread and salt, 
I have drunk your water and wine. 

The deaths ye have died I have watched beside. 
And the lives ye have lived were mine". 

As an old Lawrence boy whose first glimpse of the in- 
side of a law office was of your office, and as one whose 
earliest thoughts of the law were kindled by glimpses of 
you and your work, I add my leaf to the laurel that was 
woven for you by your troops of friends. 

Faithfully yours, 

Sam J. Eldek. 



OF A LONG LIFE. 319 



Letter of Geo. Feed. Williams. 

Dedham, March 17, 1908. 

My Dear Judge Sherman: 

Having been in ^NTew York for several days, I am to-day 
simply disgusted that I did not know of the dinner to be 
given you by the Essex Bar. I arrived home yesterday, 
and, unhappily, my partner, Mr. Halloran, did not speak 
to me about it, because he supposed it was confined to the 
Essex Bar. After I left he found that he could get a 
place at the table, and attended the dinner. I cannot 
tell you how badly I felt about it, as there is no one on the 
bench in Massachusetts whom I hold in affection as I 
hold you. So I must give you my congratulations be- 
lated. ITo statement of your age is made in the press, 
and I am puzzled to understand how a child in arms 
could be admitted to the bar. Even now, however, it 
figures out, you are the youngest man on the Superior 
Bench. Many years of useful and vigorous life to you, 
is the wish of 

Yours most sincerely, 

Geo. Feed. Williams. 



Letter of Sheeman L. Whipple. 

Boston, March 17, 1908. 

Hon. Edgar J. Sheeman^ American House, Boston. 

My Dear Judge Sherman: 

I send you my greetings and congratulations on reach- 
ing the half century mark of your career as a lawyer. I 



320 SOME EECOLLECTIONS 

should have been glad to have been able to present them 
in person. I join with your many friends in hoping you 
may be spared for many years of usefulness in public 
service of the Commonwealth and happiness to yourself. 

Sincerely yours, 

Sherman L. Whipple. 

Letter of Charles U. Bell^ 

of the Superior Court, who was a partner of Judge Sher- 
man, under the style of "Sherman and Bell", for ten 
years prior to the time Judge Sherman went on to the 
Bench. 

My Dear Judge : 

I do not want to omit to congratulate you on the com- 
pletion of your fifty years service at the bar and on the 
bench. Every one agrees that it has been a very successful 
service and we all hope that it will continue many years 
more. It recalls to me your uniform kindness to me 
since we first did business together, thirty years ago, 
which I always hold in grateful remembrance. 

Both you and Mrs. Sherman have my best wishes for 
long life and happiness. 

Yours sincerely, 

Charles U. Bell. 



APPENDIX. 

REGISTER OF MY CHILDREN AND 
GRANDCHILDREN. 



1. Frederick Francis Sherman, son, born September 17, 
1859. Died April 21, 1902. Married Jessie Sophia 
Goudge, June 10, 1884. Grant Simmons Sherman, 
grandson, born July 11, 1886. Elizabeth Sherman, 
granddaughter, born May 17, 1897. 



2. Fannie May Sherman, daughter, born September 13, 

1861. Married Henry Person Newcomb of Denver, 
Colorado, August 25, 1902. 

3. Elizabeth Sherman, daughter, born September 22, 

1865. Married Henry Souther, September 11, 
1888. Now of Hartford, Connecticut. Catherine 
Souther, granddaughter, born June 30, 1889. Mary 
Souther, granddaughter, bom April 28, 1897. 

4. Malvina Sherman, daughter, bom May 16, 1869. 

Married Frank Delbert Carney, November 1, 1892. 
Novs^ of Steelton, Penn. Louise Carney, grand- 
daughter, born July 15, 1896. 



322 SOME RECOLLECTIONS 

5. Roland Henry Sherman, son, born iN'ovember 30, 

1873. Now of Winchester, Massachusetts. Married 
Alma C. Hearle, April 5, 1898. Julia P. Sherman, 
granddaughter, born January 3, 1900. Edgar Jay 
Sherman, 2d, grandson, born August 24, 1902. 
Roger Sherman, grandson, born December 15, 1904. 

6. Abbie Maude Sherman, daughter, born September 5, 

1875. Married Fritz Henry Eaton, now of Law- 
rence, Massachusetts, August 24, 1897. James Hen- 
ry Eaton, grandson, born ISTovember 29, 1898. 
Alma Sherman Eaton, granddaughter, born October 
29, 1903. Elizabeth Frances Eaton, granddaughter, 
born December 1, 1907. 



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